Workers’ comp for injuries from systemic workplace harassment

February 23, 2014 - by: Kyla Stott-Jess 0 COMMENTS

By Kyla Stott-Jess

A recent Alberta court decision indicates that health problems arising from systemic harassment in the workplace can be covered by workers’ compensation (WCB) insurance. This decision may have ramifications across Canada.

Background: workers’ compensation legislation

Although workers’ compensation legislation varies by province, the general idea is the same across Canada. With several limited exceptions, employers are required to participate in the provincial workers’ compensation programs.

Under those programs, when employees are injured at work they are covered by WCB regardless of who was at fault. In exchange for this no-fault compensation, however, the employees lose their right to bring a claim in court directly against their employer.

While chance physical accidents or injuries are likely what first comes to mind when thinking of a WCB claim, the kind of incident that can give rise to such a claim has been found to be much broader and more varied.

Court claim against SNC Lavalin struck

In 1993, Shidan Ashraf began working as an engineer with SNC Lavalin. In January 2010, he went off work on a disability leave for psychological and physical health issues. He also sued SNC in court. In that lawsuit, he sought the difference between his long-term disability benefits and the salary and benefits he would have earned had he been able to continue working.

Ashraf alleged that his health issues stemmed from the treatment he received from his supervisor and senior management team, which he described as “an escalating and systematic campaign of abuse, harassment and bullying.”

SNC applied to strike out the lawsuit on the basis that Ashraf’s injuries were covered under Alberta’s WCB scheme. Thus a lawsuit against SNC was barred by the workers’ compensation legislation, SNC argued. The initial decision agreed with SNC.

Appeal

Ashraf’s appeal of the initial decision was heard by the Alberta Court of Queen’s Bench. The court considered whether the injuries he suffered were caught by the WCB legislation. It noted that the definition for “accident” in Alberta’s Workers’ Compensation Act is broad. It includes willful and intentional acts and chance events.

Ashraf argued that his harassment while employed was not random but systematic and thus not a chance event. The court did not disagree with him. It instead noted that there was no requirement that the “accident” be a chance event. Further, the court noted an earlier case where ongoing or continuous exposure to chemicals was found to be an “accident” under the Act.

The court found, therefore, in favor of the employer, SNC. It ruled that “the systemic campaign of abuse in the workplace and resulting injuries suffered … fall under the definition of ‘accident’” in the Workers Compensation Act. Ashraf’s lawsuit against his employer was therefore barred from proceeding.

Lessons for employers

The court’s finding in this case can be seen as employer-friendly. By ruling that workplace “accidents” can include systemic workplace harassment, the court has barred employees from bringing lawsuits seeking damages against their employers on the same issue.

There are, however, several important distinctions that may differentiate this case from claims employers usually face. It is important to note that Ashraf brought his claim independently of any claim for damages for wrongful dismissal. The workers’ compensation legislation provides no bar to wrongful dismissal claims. This case does not change the way workplace harassment factors into damages awards in wrongful dismissal claims.

Further, although Alberta decisions are persuasive for courts in other jurisdictions, they are not binding. This is doubly so where the court is interpreting different provincial legislation, as in WCB cases. Although there are indications that other provinces are moving toward similarly broad interpretation on WCB matters (see earlier article), the wording of the particular province’s WCB legislation will continue to remain the paramount consideration.

Finally, it must be remembered that employees can usually file WCB claims at no cost and with no potential liability to themselves. In lawsuits, on the other hand, there are usually serious cost consequences to the loser of any case that is litigated in Canada.

Accordingly, while this case indicates that employers may be protected from harassment suits in certain circumstances, it should not be viewed as justification for employers to relax harassment prevention and protection measures.

About Kyla Stott-Jess:
Kyla Stott-Jess Kyla is an associate in Fasken Martineau’s Litigation and Dispute Resolution Group practicing in Calgary. She has appeared before all levels of court in Alberta as well as in arbitrations and mediation. She also has assisted clients in administrative proceedings before the Alberta Utilities Commission. Kyla’s practice encompasses a broad range of complex corporate/commercial disputes, with a particular focus on employment law and estate litigation.
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