WSIB denies most workers claiming for Sexual Harassment

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by Anne-Marie Langan

Were you aware that a large portion of claims made to WSIB by workers who have experienced sexual harassment at work are being denied? WSIB defines harassment as “engaging in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome”. Yet there is a myriad of examples where behaviours that would almost certainly be considered to be unwanted by most people are determined by WSIB not to meet their definition.

Here are just a few of the most egregious examples: A worker was raped in the stairwell of the workplace by their co-worker/spouse. A supervisor trapped a worker in the room and grabbed her breasts, making comments about them. A worker was grabbed, kissed, and propositioned by a supervisor on more than one occasion.

If a worker’s employer has WSIB coverage, they usually do not have the option of suing their employer or co-workers for compensation for injuries they incurred in the course of their employment. They are permitted to bring a concurrent claim to the Human Rights Tribunal of Ontario for discrimination but these applications are often deferred pending the outcome of the WSIB appeal. From there their sole recourse is to appeal to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) which can take years. This leaves those who have been denied with no compensation whatsoever and no funding for treatment for the injuries caused by the SHIW they experienced.

As a result, workers who are denied WSIB benefits often end up having to depend on government-sponsored social assistance programs such as the Ontario Disability Support Program or the Canada Pension Plan Disability benefit for their income and are living below the poverty line. Unless a worker lives in a larger city center, it is unlikely that they will have access to timely and free treatment for their mental health challenges. This not only affects the injured worker, but it also impacts all those who live with and depend on them for financial and emotional support, like their children.

Why should we be concerned? Instead of the WSIB using employers’ premiums to support these workers following their mandate, taxpayers are paying to support injured workers. Furthermore, these workers often become sicker as a result of living in poverty and lack of treatment, thereby placing an additional burden on our public health care system.

The good news is that many community legal clinics across Ontario, including The Legal Clinic, offer free legal assistance to injured workers whose WSIB claims have been denied in obtaining the benefits they are entitled to. Many clinics are also offering free legal assistance and information for victims of SHIW, and training for employers and employees about how to prevent and address SHIW.

Anne-Marie is a staff Lawyer at The Legal Clinic in Perth, Ontario who is currently working on a Public Legal Education campaign for employers and employees about sexual harassment in the workplace. This project is sponsored by the Justice Department of the Government of Canada. Anne-Marie graduated from Queen’s Law in 2004 and completed her Masters of Law at Osgoode in 2009. In the past 6 years she has primarily practiced in the areas of employment law, including human rights in employment and Workplace Safety.

For more information about the services offered by The Legal Clinic please contact Anne-Marie Langan by phone at 613-264-7153, by email at langana@lao.on.ca or visit our websites: https://www.legalclinic.ca, and www.tlcshiwproject.com.

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