Can a worker waive his right to compensation for a workplace injury?
In Fleming v. Massey, 2016 ONCA 70, the Court of Appeal for Ontario held that based on the wording of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, the purpose for which workers compensation laws were created, and public policy considerations, workers cannot waive or release their employers from liability for damages caused by a workplace accident.
Consider this scenario: An employee is covered for long-term disability (LTD) benefits under his employer’s group policy of insurance. He sustains a head injury, but does not immediately appreciate the seriousness of the same. Three years later he quits the job that provided LTD coverage. Two years after that, he makes application for LTD benefits under his former employer’s policy. Is he still covered?
If you said “of course not”, you would be wrong. In the case of MacIvor v. Pitney Bowes, 2018 ONCA 381, Ontario’s top court ruled that the employee was not only eligible to make application for such benefits, the insurance company was required to respond and pay.
(c) istock/grinvalds
Is a legal ban on requiring high heeled shoes in the workplace inevitable? Probably.
On March 8, 2017, Dr. Andrew Weaver, Member of the Legislative Assembly of British Columbia for Oak Bay-Gordon Head (Green) introduced a Private Member’s Bill, Bill M237 — Workers Compensation Amendment Act, 2017. As the explanatory note to the bill explained, that bill would have amended the BC Workers Compensation Act, RSBC 1996, c. 492, by prohibiting employers from setting varying footwear requirements for their employees based on gender, gender expression or gender identity. Consequently, the law (if it had passed) would have made employers unable to require select employees to wear high heels.
The bill died on the order paper when the legislature rose on May 9th, ahead of the upcoming provincial election. It never really had a chance.
But, is such a ‘ban’ either coming to Ontario or inevitable? I think so.
In a decision that is sure to be relied upon, scrutinized and judicially reviewed, the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has found that the prohibition against claims by workers for mental stress to be unconstitutional.
Accordingly, in the case considered below, the WSIAT declined to apply subsections 13(4) and 13(5) of the Workplace Safety and Insurance Act, 1997, the result of which being that an employee who made a claim to the WSIB for benefits following years of workplace harassment might actually receive WSIB benefits.
Can an Ontario worker make a claim to the Ontario Workplace Safety and Insurance Board (WSIB) for benefits when the cause of injury is mental stress?
One of the joys of being a “lawyer for the suddenly unemployed” is that one gets to work in the field of overlapping insurance policies and acronyms: LTD, CPP, WSIB, EI, and occasionally SABS. While issues concerning the deductibility of various payments from other entitlements is often enough to make one reconsider his career choice, a recent decision from the Ontario Superior Court does supply some clarity with respect to the issue of an employer’s right to set of WSIB (Workplace Safety & Insurance Board) benefits as against wrongful dismissal damages.
In a decision welcomed by employers’ counsel (see others’ commentary here and here) the Honourable Justice Roland Haines, in his reasons for decision in Jensen v. Schaeffler, 2011 ONSC 1342 held that an employee’s receipt of WSIB income replacement benefits was to be deducted from her common-law, but not statutory, wrongful dismissal damages.
