By Graeme McFarlane

There is an increasing awareness of bullying throughout society.  Much of the media coverage focuses on bullying that occurs in schools or is directed against young people.  However, this is only a small part of the problem.  Bullying and harassment can occur at work.  This type of conduct can seriously affect the health of the target employee.

Historically, workers’ compensation legislation in Canada has only addressed employee claims for mental disorders that are somehow connected to a physical injury that occurs at work or develops in response to traumatic workplace event.  However, many provincial regimes have been modified to provide workers with benefits for mental disorders that are not necessarily connected solely to a workplace injury.  British Columbia has additionally broadened occupational health and safety obligations through its policies so as to prevent or limit psychological harm to workers.

Claim for Compensation Expands
On July 2, 2012, Bill 14 came into effect that amended section 5.1 of the Workers Compensation Act.  This legislation greatly increased the areas on which a worker could make a claim for compensation.  It entitles a worker to compensation for a mental disorder that is “predominantly caused by a significant work-related stressor, including bullying and harassment, or a cumulative series of significant work-related stressors, arising out of and in the course of the worker’s employment.”

‘Predominant Cause’ Raises Questions
This provision creates a new “predominant cause” test for determining whether a mental disorder is linked to the workplace.  However, decision-makers are faced with a difficult and complex task because mental disorders are frequently caused by a multitude of factors.  These factors can include personal stressors or characteristics, non-workplace -related injuries, as well as workplace events.  As more cases are decided we will learn how WorkSafe BC will apply the “predominant cause” test.

In addition, because of the sensitive nature of mental illness, there will likely be significant issues with any intersection between the adjudication of these claims and the privacy protection afforded by other statutes.

This expansion in worker entitlements with respect to mental disorders may increase the costs to employers.  B.C.’s occupational safety and health regime requires employers to provide a safe workplace.  This necessarily means that employers must take positive steps to reduce or eliminate any risk of a workplace injury.  As a mental disorder is now a potentially compensable workplace injury, it should follow that employers now have the obligation to reduce or eliminate workplace harassment and/or bullying.

However, notwithstanding this relatively straightforward conclusion, the legislature chose not to amend the Occupational Health and Safety Regulations to deal with bullying and harassment even though those terms are specifically included in the amended Act.  WorkSafe BC has attempted to address this deficiency with its prevention policies, and it will be interesting to see how those policies are addressed in the litigation that will ultimately test this regime.

A Paradox of Protections
Another interesting point is that these expanded worker entitlements may paradoxically insulate employers from significant liability.  The workers compensation system is a type of no fault insurance scheme.  This means that workers do not have to prove that the employer was somehow at fault for their injuries to receive benefits.  In return, the employee cannot sue their employer for damages related to a workplace injury or disease.

In late December 2012, the British Columbia Court of Appeal considered this concept with respect to a claimed mental disability.  The court held that for injuries that arise out of the employment relationship the bar against lawsuits remains.  It said:

“…[T]he trade-off for employers is a complete immunization from workplace injury claims.  In my view it would undermine the core policy of the scheme to have employers exposed to lawsuits based on the scope of compensable claims afforded to workers under the legislation.  This would result in uncertainty and a patchwork system of compensation.  It would result in a proliferation of litigation to determine what is and what is not covered by the scheme in the context of the protection afforded to employers.”

Therefore, employers will be insulated from lawsuits by employees for workplace activities that could be described as harassing or bullying.  They will be able to defend such claims within the compensation system by using the causation language and can face any court claim by invoking the section 10 statute bar.

Bill 14 has greatly expanded the scope of worker entitlements under the compensation regime with respect to mental disorders linked to the workplace.  This may increase costs to employers associated with such claims.  However, this expansion significantly limits exposure to damages related to employees who may otherwise have sued the company in Court.

Graeme McFarlane is a partner at Roper Greyell LLP, a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk Spring 2013)