Written on behalf of Peter McSherry
As discussed in a recent post, amendments to Ontario’s workers’ compensation laws now allow for claims for workers’ compensation benefits based on claims for mental distress. This is having a severe impact on civil claims in which the employee has asserted “unfair conduct” leading to claims for aggravated damages due to emotional distress. There, are, however, exceptions to this general rule.
The new law requiring employees to submit such claims first to workers’ compensation for determination does not apply to human rights claims in which the worker claims damages for injured feelings. This is based on a technical interpretation of the relevant statute which defines an “action” (referring to a lawsuit) as one which does not include a human rights complaint.
Ontario human rights law is complicated, as it is possible to enforce a human rights claim by an “administrative” process which includes filing a claim with the Human Rights Tribunal, and also by means of a civil lawsuit. Clearly the second process of the civil claim is an “action” which may well mean such a remedy would in fact be barred.
The reality is that the Ontario Government did not think this out very clearly when the workers’ compensation rules were revised to include claims of compensation for emotional distress. What is even more troubling is that, even with the revised law in place, very few claims for compensation based on emotional distress have been allowed.
Suing the Offenders Personally
Even with the new law in place, the plaintiff may still assert a claim against the alleged wrongdoer personally. For example, a woman who has alleged physical abuse causing emotional harm can still sue the offender personally, provided that the company has not condoned or somehow approved of this wrongful conduct. In this situation, there is no need to bring a workers’ compensation claim first.
Workers’ Compensation & Disability Claims
Where a workers’ compensation claim can be successfully made for emotional distress, any payments received for the distress under a disability insurance policy will reduce the amount of the claim. This may not be the case for a similar claim made under human rights law or against the wrongdoer personally, provided that the employee contributed to the payment of the insurance premiums directly by payroll deduction or indirectly by working for the employer which provided the insurance scheme. If the disability is a strictly private policy paid by the plaintiff, no sums will be deducted from the human rights claim or one against the offender personally.
Tax Issues & Workers’ Compensation
All workers’ compensation payments, which oddly enough are intended to replace income lost by the workplace “accident”, are non-taxable, which is a thought to keep in mind.
Employees’ Take Away
This topic raises a minefield of issues. If you are covered by workers’ compensation law, you will need legal advice to guide you through these issues and to advise on your best path forward in making a claim.
Let Legal Advice Guide Your Actions
If you are covered by workers’ compensation and have been treated unfairly, get advice and do so quickly. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation