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This is the first in a series of articles which will focus on mental health in the workplace. Employees now have a positive duty to ensure a psychologically safe workplace for their workers.

As recently as 10 years ago, only egregious acts resulting in catastrophic psychological harm could give rise to legal action for mental distress. As a result of a growing focus on wellness and the corrosive effects of mental illness in the workplace, there are now a variety of avenues through which an employee can pursue allegations of more subtle and systemic employee distress.

In Ontario remedies are available to employees exposed to a psychologically unsafe workplace under four separate and sometimes overlapping regimes – Workers' Compensation legislation, Occupational Health and Safety legislation (Bill 168), Human Rights legislation, and civil litigation.

Under the Workers' Compensation scheme, the definition of what constitutes a workplace injury is increasingly broadening. There is an acknowledgement that the intention of this legislation is to compensate all work related injuries, not just physical injuries. In 2009, provisions in the BC Workers Compensation legislation that allowed compensation for mental stress only if it was an acute reaction to a sudden traumatic workplace event were struck down. The Court of Appeal recognized that it was discriminatory that workers with work-related mental injuries were required to meet a higher threshold than those with physical injuries in order to access workers' compensation benefits.

Amendments to Ontario's Occupational Health and Safety Act in 2010 recognized psychological wellbeing in the workplace as another dimension of workplace safety by requiring employers to prevent and deal with complaints of workplace harassment. According to Joy Noonan, an Ottawa-based mediator and neutral investigator of complaints of this nature, there is a "heightened sense among those in the workforce of their right to be treated with respect at work. Poor treatment that might otherwise have been tolerated in years past as an unfortunate 'just the way it is' – is no longer accepted." A climate of bullying and harassment is no longer acceptable.

Human Rights tribunals apply a broad definition of mental health disorders when determining the employer's duty to accommodate. They have recognized an employer's duty to pay attention to signs of mental disorder, even where an employee has not provided medical evidence confirming the need for accommodation. Tribunals have the power to award damages and to require employers to draft policies and provide sensitivity training. Wise employers will avoid such imposed obligations by preparing, implementing and monitoring the application of policies that ensure a psychologically safe workplace.

The employment contract is no longer perceived as contemplating only the exchange of labour for wages. The employment relationship now encompasses implicit terms for the psychological protection of employees. Generally, employers have a duty to behave in a fair and reasonable manner in the course of the employment relationship as well as at the time of dismissal.

Finally, employees may seek compensation for mental injury with a Feature claim for intentional infliction of mental suffering. In determining damage awards of this nature, courts consider the "foreseeability" of the damage caused: would an employee of ordinary fortitude suffer serious psychological injury because of the employer's act or omission? Although the amounts awarded by Canadian courts are modest compared to the damage awards in American cases, it is prudent for employers to take every reasonable precaution to avoid acting in a way that a reasonable person could see would cause harm to their employees' mental health.

What should employers and employees take away from this? With a broad range of monetary and nonmonetary remedies available under various legal regimes, employees are increasingly demanding their right to be treated with respect in their employment, both during the employment relationship and at the time of dismissal. Employers who fail to provide or maintain a psychologically safe workplace do so at their peril. The employment contract is no longer perceived as contemplating only the exchange of labour for wages.

[This article was originally published in the spring 2013 edition of OCASA's College Administrator professional journal.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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