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 legal representative who can help you. See How to Find and Work With a Lawyer.
If you’re reading this, you’re probably considering filing a claim with the Workers Compensation Board of P.E.I. because you want to be compensated for harms you suffered due to harassment. This guide explains how to file a WCB claim related to sexual harassment, and the pros and cons of this process, so you can decide whether it’s an avenue you want to pursue.
The Workers Compensation Board is an independent Prince Edward Island organization funded by Island employers that 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 Workers Compensation Board
- The WCB functions like an insurance provider. Employers pay premiums to the WCB for the people who work for them. As a result, those people are entitled to benefits if they suffer a workplace injury.
- About 98% of workers are covered by the WCB because most workplaces are required by law to register with the board.
- Every year, about 1,600 workers in P.E.I. file a WCB claim. The WCB approves 90% of those claims.
- However, the criteria for a psychological injury claim are so strict that it’s unlikely a claim relating to workplace sexual harassment would be successful.
- If your WCB claim is rejected, you can file an appeal, but appeals often don’t succeed.
- Sources: Workers Compensation Board of P.E.I. 2020 Annual Report, Association of Workers’ Compensation Boards of Canada
If you’ve been harmed by sexual harassment at work, you might think the WCB 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 a male-dominated 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—that the WCB normally does reimburse.
And so it might sound like a good idea to file a claim with the WCB.
But we need to warn you: The WCB is very unlikely to help you.
The WCB doesn’t investigate or adjudicate workplace sexual harassment claims. It’s not going to say, “Yes, you were harassed, and you were punished for reporting it. Here is some money to make up for the pay you lost.” It’s not going to say, “We agree with you that your industry is unfriendly to people like you, and that it makes sense for you to retrain for a different job where you’re less likely to be harassed. We will fund your retraining.”
All the WCB can do is to give you benefits and supports if you have suffered a physical injury at work (rare in cases of sexual harassment) or psychological injury (less rare in sexual harassment cases, but hard to prove). It will only help you if the harm you’ve suffered fits into one of those two categories. And if your employer disputes your claim, which it probably will, the WCB is very unlikely to approve it.
Historically, the WCB handled claims related to physical injuries suffered by workers in male-dominated industries like construction and manufacturing, and in 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 WCB was designed for, and has a lot of experience handling.
The WCB has less experience with mental health harms and only recognizes an “acute reaction to a traumatic event” as a cause of workplace-related mental health injuries. It does not acknowledge the mental stress that can be caused by sexual harassment.
Realistically, it’s likely that if you apply for benefits because of being sexually harassed, you’ll be turned down. 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 it’s unlikely your appeal will be successful.
If you want to apply for disability insurance through your workplace provider, the insurer may require you to apply to the WCB first, and appeal if you are turned down.
Psychological injury claims
The WCB awards benefits due to the injury you sustained, which in your case would be damaged mental health. This would require a diagnosis of a “trauma or stressor-related disorder,” like post-traumatic stress disorder, that’s described in the Diagnostic and Statistical Manual of Mental Disorders-5.
To get benefits, the WCB says that the injury has to be caused by an “acute reaction to a “traumatic event.” “Acute reaction” is defined as “a significant or severe reaction resulting in the diagnosis of a psychological or psychiatric condition.” “Traumatic events” are defined as “exposure to actual or threatened death, serious injury or sexual violence.”
Pros and cons of going to the WCB
- Making a WCB claim isn’t as expensive or complicated as in other forums. You won’t have to pay for your employer’s legal costs if they appeal your claim and your appeal isn’t successful at the Workers Compensation Appeal Tribunal.
- If the WCB accepts your claim, the process to get money could be faster than in other forums.
- WCB benefits can be generous: 85% of your net salary.
- Employers in P.E.I. seldom dispute claims.
- You submit your claim directly to WCB. 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 are some legal resources to help you.
- You can’t apply to the WCB secretly. Your employer will know about your claim, which means they will have information about your private health circumstances.
- Your employer will be updated about any changes to your claim. That means they will continue to know about your personal health situation, even if you don’t work for them anymore.
- The WCB 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 WCB can’t give you that.
- Making a WCB claim may mean you can no longer go to other legal forums.
Will the WCB accept my application?
- To be eligible for benefits and services under the WCB process, you must be a “worker” employed in a business or industry that is covered by the Workers Compensation Act. However, because the majority of businesses are required to register with the board, most workers in P.E.I. are covered.
- If you aren’t sure whether you’re covered by the WCB, you can call the board at 1-800-237-5049 or contact the Office of the Worker Advisor.
- You must file your claim within six months of the date of the injury.
- The WCB will only accept your claim if the traumatic event took place “in the course of your employment.” This means that it only counts if it happens at work, during your work hours (or within a reasonable period before or after work), and while you are performing your work duties. If you live on your employer’s property, an injury that takes place outside work hours may still be covered. Similarly, if your work requires you to go to different places, you may be covered while travelling and at the different locations.
- As a general principle, the law says that you can’t have the same issue decided twice in two different places. If you start a case for the same problem in more than one forum, it’s possible that the decision-maker in one of them will wait until the case has been decided in the other forum or dismiss it altogether. People often try the WCB first. However, it’s best to speak with a lawyer about your options, as the facts of your case may allow you to approach more than one forum.
Contact the WCB (1-800-237-5049) to learn about the rules that apply if you are in one of these categories:
- non-resident worker
- non-status or don’t have a work permit
- foreign agricultural worker
The WCB will look for proof of these things when it reviews your psychological injury claim:
You’ve experienced a traumatic event such as sexual violence or a threat of sexual violence.
The traumatic event occurred in connection with your employment.
You have a trauma- or stressor-related disorder. This requires a diagnosis by a psychiatrist or psychologist that is recognized by the Diagnostic and Statistical Manual of Mental Disorders-5. Some examples: acute stress disorder, post-traumatic stress disorder.
You may be able to get help from a lawyer for free or low cost:
- The RISE program provides free legal supports to P.E.I. workers who have experienced workplace sexual harassment. This includes free legal advice from a lawyer for up to four hours.
- The Office of the Worker Advisor is an independent government agency that provides free and confidential services about workplace injuries and compensation to workers. This office can provide information, advice, and representation to you throughout the WCB process. It also represents workers who appeal to the Workers Compensation Appeal Tribunal.
- Community Legal Information can help you understand the law and navigate the justice system. If it thinks you need to speak to a lawyer, it will refer you to one for a 45-minute consultation. The cost of this consultation is $25.
- 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 family net income under $90,000 and be experiencing financial difficulties. Participating lawyers’ reduced rates vary depending on your family size and income.
For advice on hiring a lawyer, see How to Find and Work with a Lawyer.
Social and health supports
- 211 PEI: This community and social services helpline is available 24 hours a day by phone (211 or toll-free 1-844-925-1257) or online. It can put you in touch with many services, supports, programs, and more.
First, you must decide if filing a claim with the WCB is the right choice for you. Because it’s very hard to make a psychological injury claim, there might be other forums—for example, the P.E.I. Human Rights Commission or civil court—where you could have a better chance of success.
If you do choose to go to the WCB, you’ll find more information about work-related mental stress injuries and the application process here. You can submit the completed Form 6 (Worker’s Report) electronically by following the directions on the WCB website. You must file your claim within six months of the date of the injury.
Once you’ve filed a claim, the WCB will register it and assign an entitlement officer to look after your claim. If your claim is accepted, it will be transferred to the WCB case management team. This team is made up of case coordinators, occupational therapists, and vocational rehabilitation counsellors, who will assist you throughout your medical recovery and your return to work.
Your employer’s report
You must report your injury to your employer. As soon as you report an injury to them, they have to complete a Form 7 (Employer’s Report). This will include information about your injury. If you have missed work, your employer has to provide information about your job, your earnings, and your psychological injury.
A health professional’s report
A physician has to complete Form 8 (Physician report). Your doctor will provide information on what your diagnosis is and how your ability to work is affected. They also have to indicate a treatment plan.
If your claim is approved
See the WCB Benefits page for a detailed outline of what you might be eligible to receive if your claim is successful. This includes:
- health care benefits for treatment
- money to replace income you’ve lost due to your injury; you receive 85% of your net salary to a maximum of about $59,000 if you’re off work
- reimbursement for medication expenses and other rehabilitation costs
Returning to work
The WCB’s focus is on trying to get you back into the workplace. Your health professional is key to this step. The WCB will work with you, your employer, and your health care provider to develop a suitable return-to-work plan.
The thought of returning to work after the traumatic event you experienced there can be stressful and overwhelming, as you’re going back to the place where you were affected. Consider connecting with your support network, like friends, trusted loved ones, a therapist, or support group. See Build a Support Network for more information.
The WCB will try to design your return-to-work plan specifically around your abilities and the kind of work that is available. A return-to-work plan can include:
- a gradual increase of hours and/or duties
- modified or alternate work
- retraining, if necessary (this seldom occurs)
Because your return-to-work plan will be guided by what your health professional says about your health, it’s a good idea to tell them about any concerns you have. They might be able to advocate on your behalf and make suitable recommendations. The plan will be very detailed. It may also set out any permanent accommodations you might require.
If your claim is turned down
It’s very likely that your WCB claim for psychological injury due to sexual harassment will be denied. Appealing is lengthy and seldom successful.
You may still decide to appeal, and if you do, you must file a Request for Internal Reconsideration form within 90 days of the date of the decision. You can request a copy of your claim by contacting your entitlement officer at the WCB. Occasionally, when given more documents or information, the WCB changes its decision.
An internal reconsideration officer will send a written copy of their decision to all of the parties within 90 days. A successful appeal will include details on what you are eligible for, how much you should receive, and how long you should collect benefits.
If you do not agree with the internal reconsideration decision, you can file a final appeal to the Workers Compensation Appeal Tribunal.
The Workers Compensation Appeal Tribunal
The Workers Compensation Appeal Tribunal (WCAT) is the final level of appeal if you disagree with a WCB decision. It’s independent from the WCB but applies WCB policies in its decisions. You must have already gone through the WCB appeal process to reach the WCAT. You have 30 days from the date of the internal reconsideration decision to file an appeal at the WCAT.
The WCAT process usually includes in-person hearing.
Five copies of the Notice of Appeal form should be faxed to 1-902-620-3477or mailed, couriered, or delivered in person to the WCAT at:
Workers Compensation Appeal Tribunal
161 St. Peters Road
P.O. Box 2000
Charlottetown, P.E.I. C1A 7NA
You can find more information about the WCAT appeal process here. Remember, the Office of the Worker Advisor can provide representation at the WCAT appeal.
In most of its cases, the WCAT releases its decisions within 90 days after the hearing has finished.
WCAT decisions are final. You may pursue an appeal at the Court of Appeal within 30 days of the WCAT decision. If you are considering this, you should discuss your case with a lawyer to review your options. See How to find and hire a lawyer.