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Mental Stress Appeals at the WSIAT

In light of recent amendments to the Workplace Safety and Insurance Act, 1997 (“WSIA”), the WSIAT has been actively monitoring appeals in which a claim for entitlement for mental stress has been made.

In accordance with the changes to the WSIA set out in Schedule 45 of Bill 177, Stronger, Fairer Ontario Act (Budget Measures), 2017, as of January 1, 2018, the WSIAT will be referring appropriate appeals back to the WSIB in accordance with the current provisions of the WSIA.

Please note that:

There are a small number of appeals where, in light of the stage of the appeal, it will be necessary for the assigned Vice-Chair or Panel to make a determination with respect to the WSIAT’s jurisdiction and whether the appeal is “pending” as outlined in the legislation.  In these appeals, the Tribunal Counsel Office will raise this issue with the assigned Vice-Chair or Panel to seek instructions and the parties to the appeal will also be notified.

If you are NOT notified about your appeal being referred back to the WSIB by March 1, 2018, and you believe that your appeal should be referred back, please contact the WSIAT by calling the WSIAT’s Call Centre at (416)-314-8800 or 1-888-618-8846, 8:00 a.m. to 5:00 p.m., Monday to Friday.

Questions about the WSIAT’s process for these referrals can also be directed to the WSIAT’s Call Centre.

Bill 127, Stronger, Healthier Ontario Act (Budget Measures), 2017 and Bill 177, Stronger, Fairer Ontario Act (Budget Measures), 2017

In May 2017, Bill 127, Stronger, Healthier Ontario Act (Budget Measures), 2017 received Royal Assent.  Pursuant to Schedule 33 of Bill 127, effective January 1, 2018, the former sections 13(4) and (5) of the WSIA are repealed and replaced with two new sections.  The new section 13(4) provides that workers are entitled to benefits for chronic and traumatic mental stress arising out of and in the course of the worker’s employment, subject to section 13(5).  Section 13(5) provides that workers are not entitled to mental stress caused by “decisions or actions of the worker’s employer relating to the worker’s employment”.  The WSIB has also introduced new policies pertaining to traumatic and chronic mental stress.

On December 14, 2017, Bill 177, Stronger, Fairer Ontario Act (Budget Measures), 2017 received Royal Assent.  This Bill amended the WSIA and specifically introduced transitional provisions with respect to claims for mental stress.  These transitional provisions came into effect on January 1, 2018.  Two of these transitional provisions relate specifically to appeals at the WSIAT.

Pursuant to the new section 13.1(8), if a worker or survivor has filed a claim for entitlement for mental stress within the applicable time limits and the claim is “pending” at the WSIAT on January 1, 2018, the WSIAT must refer the claim back to the WSIB.  These claims will then be decided by the WSIB in accordance with section 13(4) of the WSIA as it reads at the time the decision is made, regardless of the date on which the mental stress occurred.

Similarly, the new section 13.1(9) states that if, on or after January 1, 2018, and within the time limit in section 125(2) of the WSIA, a worker or a survivor files a notice of appeal of a final decision of the WSIB made before January 1, 2018 with respect to a claim for entitlement to benefits for mental stress with the WSIAT, the WSIAT shall refer the claim back to the WSIB.  These claims will also be decided by the WSIB in accordance with section 13(4) as it reads at the time the decision is made.

Schedule 33, Bill 127, Stronger, Healthier Ontario Act (Budget Measures), 2017

Schedule 45, Bill 177, Stronger, Fairer Ontario Act (Budget Measures), 2017

Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sch. A