This is not legal advice! What you are getting here is just general legal information. It is not a substitute for advice from an actual lawyer about your specific situation. If you need legal advice, we urge you to find a lawyer who can help you.
The Workplace Safety and Insurance Board is an independent Ontario governmental agency that operates “at arm’s length” from the Ontario Ministry of Labour, Training and Skills Development. It gives benefits and supports to people who’ve been injured at work. These can include replacement of lost wages, health care (including rehabilitation, counselling, and medications), and, in extreme situations, retraining.
Facts about the Workplace Safety and Insurance Board
- The WSIB functions like an insurance provider. Employers pay premiums to the WSIB for the people who work for them. As a result, those people are entitled to benefits if they suffer a workplace injury.
- About 75% of Ontario workers are covered by the WSIB.
- Every year, approximately 250,000 WSIB claims are reported. The WSIB approves about 75% of those claims.
- However, most successful claims are for physical injuries. When it comes to mental stress resulting from trauma or harassment, more than 90% of claims are rejected.
- In 2023, fewer than100 chronic mental stress claims were approved.
- If your WSIB claim is rejected, you can file an appeal, but most appeals are unsuccessful.
- Sources: WSIB Health and Safety Statistics, Association of Workers’ Compensation Boards of Canada, Toronto Star
If you’ve been harmed by sexual harassment at work, you might think the WSIB will help you.
- Maybe after you were harassed, you took time off work and so lost income.
- Maybe the harassment damaged your mental health, and you ended up needing to spend money on medication for anxiety or depression.
- Maybe the harassment had such an effect on you that you had to leave an industry and ended up needing to retrain for a new type of work in a different field.
Those are the kinds of expenses—replacement of lost wages, medication costs, retraining costs—that the WSIB often covers.
However, historically, the WSIB has mostly handled claims related to physical injuries suffered by workers in male-dominated fields like construction, manufacturing, and uniform occupations like policing and firefighting. If you slip at work and break your ankle, or are struck by a falling object, or are injured in a fire or explosion: that is the kind of situation the WSIB was designed for and has a lot of experience handling.
The WSIB has less experience with mental health harms. It has only accepted claims for chronic mental stress with no physical injury since 2018. And for these types of claims, the WSIB requires you to prove that your workplace was the “predominant” cause of your injury, whereas proof for other claims is only that the workplace was a “substantial” cause. That higher standard, worker advocates say, is another reason, in addition to the established WSIB culture, why so few harassment claims to the WSIB are successful.
Though we’re not saying don’t bother applying for WSIB benefits, you should be aware that it’s unlikely your claim will be successful. If you want to pursue the claim after being denied, you’ll need to be prepared to go through an appeal process. Appealing can take a long time, and, of the few appeals that are heard, many are denied.
Legally, if your employer has WSIB coverage, they are required to report any injuries that occur in their workplace. But really most are unlikely to do this in sexual harassment cases, because they often deny the harassment occurred.
If you want to apply for disability insurance through your workplace provider, the insurer may require you to apply to the WSIB first, and appeal if you are turned down.
Pros and cons of going to the WSIB
Pros
- It isn’t expensive or very complicated.
- WSIB benefits can be generous. Wage replacement is up to 85% of your net salary.
- You submit your claim directly to WSIB. No need to wait for your employer to investigate.
- Representing yourself is possible when first making a claim. But if your claim is denied, appealing is more complicated. There may be some legal resources to help if you still want to represent yourself.
Cons
- You can’t apply to the WSIB secretly. Your employer will know about your claim, which means they will have information about your private health circumstances.
- Your employer will have the opportunity to dispute your claim and it’s very likely they will do this, in which case proving your case will be more difficult.
- The WSIB has an extremely high rate of denying chronic and traumatic mental stress claims.
- If the WSIB rejects your claim and you appeal, the appeal process may go on for years.
- Your employer will be updated about any changes to your claim. That means they may continue to know about your personal health situation, even if you don’t work for them anymore.
- The WSIB doesn’t investigate or adjudicate whether you were sexually harassed. If you are looking for someone to tell you that you were sexually harassed, and to punish the harasser or your employer for allowing the harassment, the WSIB won’t give you that.
- To make a claim, you will need a medical professional to say that you’ve suffered an injury. If you don’t have easy access to a medical professional who will do this, making a claim will be harder.
Psychological injury claims
The WSIB awards benefits due to the injury you sustained, which in your case would be damaged mental health. This requires a diagnosis of conditions described in the Diagnostic and Statistical Manual of Mental Disorders-5, like depression, post-traumatic stress disorder, adjustment disorder, or anxiety.
Under WSIB guidelines there are two categories of mental health injuries:
Chronic mental stress covers injuries from ongoing events where the injury develops over time. This might apply to a case where you are repeatedly harassed by a co-worker.
Traumatic mental stress results from a specific traumatic event, such as harassment that includes physical violence, the threat of physical violence, or a life-threatening situation. The incident itself is the source of the trauma. While TMS claims are often based on a single traumatic event, the WSIB can also consider multiple incidents if the “cumulative impact” is traumatic. This means that, if events are looked at on their own and aren’t traumatic, they may be considered traumatic when looked at together. It’s not likely this type of claim fits your situation.
The WSIB won’t cover every kind of mental stress that arises at work. If you develop a mental health condition caused by your employer making changes to your shifts or other working conditions, for example, or firing you, or due to interpersonal conflicts that don’t involve harassment, you aren’t eligible to file a claim.
Historically, the WSIB is more likely to accept traumatic mental stress claims than chronic mental stress claims. But the acceptance rate is low for both.
How to make a WSIB application
First, you must decide if filing a claim with the WSIB is the right choice for you. If you choose to go to the WSIB, read Submitting an Injury or Illness Report. Submit the completed Form 6 (Worker’s Report of Injury/Disease) electronically by following the directions on the WSIB website.
To file a claim with the WSIB, you must be employed in a business or industry that is covered by the Workplace Safety and Insurance Act. About 75% of workers in Ontario are included under the act.
For more information
If you do choose to go to the WSIB, you’ll find more information about work-related mental stress injuries and the application process on the website.
Legal help
Representing yourself is possible when first making a claim. But if your claim is denied, appealing is more complicated. Here are some places that offer free or lower-cost legal services:
- ProBono Ontario’s legal advice hotline (1-855-255-7256) offers low-income, non-unionized callers up to 30 minutes of free legal advice.
- You can get a free 30-minute consultation with a lawyer or paralegal through the Law Society Referral Service. Request a referral online and LSRS will provide you with the name of someone who can help you identify your legal options.
- The Office of the Worker Adviser is an independent governmental agency that provides free and confidential services about workplace injuries and compensation to non-unionized workers. This office can provide information, advice, and help with representation to you throughout the WSIB process. It also has an extensive network of supports for injured workers and may be able to direct you to other organizations that can help.
- There are several specialty Legal Aid Ontario clinics that provide free services to low-income individuals. If you’re below the financial threshold, which in 2024 was just under $23,000 for a single person, these may provide you with representation or legal advice:
- Industrial Accident Victims Group of Ontario (IAVGO) is particularly concerned about migrant workers and offers services in a number of languages.
- Injured Workers Community Legal Clinic focuses on WSIB matters.
- Workers’ Health and Safety Legal Clinic helps low-income, non-unionized workers with WSIB, health and safety, human rights, and employment reprisal cases.
- JusticeNet is a not-for-profit service for those whose income is too high to qualify for legal aid but too low to afford regular legal fees. To qualify you must have a net family income under $70,000, or $90,000 if there are three or more people in your family, and be experiencing financial difficulties. Participating lawyers’ reduced rates vary depending on your family size and income.
- Your workplace union, association, or employee assistance program may be able to help you find legal services or cover part of your legal fees.
For advice on hiring a lawyer, see How to find and work with a lawyer.