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. See How to Find and Work With a Lawyer.
If you’re reading this, you’re probably considering filing a claim with the Saskatchewan Workers’ Compensation Board 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 Saskatchewan Workers’ Compensation Board, created in 1911, is an independent Saskatchewan government agency. It gives benefits and supports to people who’ve been injured at work. These can include replacement of lost wages and benefits, counselling services, medication costs and other health care costs, and, in certain circumstances, 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 75% of Saskatchewan workers are covered by the WCB
- Every year, about 24,000 workers in Saskatchewan file a WCB claim. The WCB approves 75% of those claims.
- The WCB accepted 238 psychological injury claims in 2021, up from 174 in 2017. About 1% of accepted claims are for psychological injury.
- The WCB created a psychological injuries unit in 2019.
- Since 2016, if a worker is diagnosed with a psychological injury it is presumed to be “an injury that arose out of and in the course of the worker’s employment.”
- Sources: Saskatchewan Workers’ Compensation Board 2020 Annual Report, Saskatchewan Workers’ Compensation Board, Association of Workers’ Compensation Boards of Canada, CTV News
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.
Those are the kinds of expenses—replacement of lost wages, medication costs—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.”
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 mental stress (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 has mostly 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.
Realistically, it’s likely that, if you apply for psychological injury benefits, 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 of the few appeals that are heard, many are denied. Only 1% of the claims the WCB accepts are for psychological injuries.
Legally, if your employer is a WCB member, they must report any injuries that require medical attention 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 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 a psychological injury. This could be a diagnosis of conditions like depression, post-traumatic stress disorder, or anxiety. It must be a psychological condition recognized by the Diagnostic and Statistical Manual of Mental Disorders-5.
A claim for a psychological injury due to sexual harassment at work must involve “a single or series of [traumatic] events or incidents that arose out of and in the course of employment.”
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 Board 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: wage replacement is 90% of net salary to a maximum of $94,400.
- 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 may be some legal resources to help if you still want to represent yourself.
- 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 have the opportunity to dispute your claim. It’s very likely they will dispute it, in which case the WCB will be more likely to turn it down.
- 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 won’t give you that.
- To make a claim, you will need a psychologist or psychiatrist 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.
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. About 75% of workers in Saskatchewan are covered by the WCB.
- If you aren’t sure whether you’re covered by the WCB, you can call (1-800-667-7590), or seek advice from the Office of the Workers’ Advocate.
- The WCB will only accept your claim if it involved a traumatic event or a series of traumatic events that took place “in the course of your employment.” Meaning harassment only counts if it takes place 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, harassment 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.
- Not all work-related stress is covered by the WCB under psychological injuries. 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.
- 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. See How to Find and Work with a Lawyer.
The Workers’ Compensation Act outlines the industries and occupations that are excluded under the act.
The WCB will look for proof of these three things when it reviews your claim:
You’ve experienced a traumatic event as defined by the WCB.
The traumatic event occurred in connection with your employment.
A psychiatrist or psychologist has diagnosed a psychological disorder in accordance with Diagnostic and Statistical Manual of Mental Disorders-5. Some examples: acute stress disorder, post-traumatic stress disorder, anxiety, or depression.
Under the WCB’s definition of traumatic event, the sexual harassment will have to be considered “excessive” and “unusual.” Unfortunately, this overlooks how the sexual harassment has been traumatic for you. Being told that the harassment you experienced was something that wouldn’t be considered traumatic from a “public perspective” can affect you in a variety of ways. It’s a good idea to connect with mental health supports, which can help you through this difficult situation.
You may be able to get help from a lawyer for free or at lower cost.
- The Shift Project provides legal information and advice to workers who have experienced workplace sexual harassment. You can receive up to four hours of free legal advice.
- Pro Bono Law Saskatchewan provides free legal services to low-income Saskatchewan residents at 14 locations across the province. You can get up to an hour of legal advice. The lawyers cannot represent you.
- The Office of the Workers’ Advocate 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 help with representation to you throughout the WCB process.
- CLASSIC provides free advice to low-income individuals in Saskatoon. CLASSIC law students, supervised by lawyers, provide these services.
- 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 $90,000 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.
For advice on hiring a lawyer, see How to Find and Work with a Lawyer.
Social and health supports
- Saskatchewan 211: This community and social services helpline is available 24 hours a day by phone (211 or toll-free 1-306-751-0397) or online. It can put you in touch with over 6,000 services, supports, programs and more.
First, you must decide if filing a claim with the WCB is the right choice for you. Because there is a very high turndown rate for claims involving sexual harassment, there might be other forums—for example, the Saskatchewan 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 psychological injuries and the application process on the website. You can submit the completed Worker’s Report of Injury (W1) form online. You can also email the completed form or mail it to:
Saskatchewan Workers’ Compensation Board
200-1881 Scarth Street
Regina, SK S4P 4L1
You can also call the WCB at 1-800-667-7590; a WCB representative can take your information and complete the form for you.
Once you’ve filed a claim, a WCB staff member will start to gather information from your employer and your healthcare provider to validate your claim. This person may guide you through the next steps, though it’s not uncommon for applications to be dismissed at this stage.
Your employer’s report
As soon as you report an injury to your employer, they have to complete an Employer’s Report of Injury (E1) form. This will include information about your job, your earnings, and your psychological injury. The form asks your employer whether they have any reason to believe that this is not a work-related incident.
A health professional’s report
Your psychologist or psychiatrist has to provide information on what your diagnosis is and how your ability to work is affected. Completing an Authorization to Release Documentation and Information (WMROI) form allows the WCB to assess a health professional’s evaluation of your condition.
After the forms are filed
Once all of the forms have been submitted, the WCB will consider your claim. It will be looking into two things. First, is the injury caused by sexual harassment that happened at work? Second, is your mental health condition caused by workplace sexual harassment? The WCB might contact you to ask about the details.
A mental health assessment
The WCB may ask you to undergo a mental health assessment if it thinks more medical information is necessary to make a decision in your case. Mental health assessments are based on the Diagnostic and Statistical Manual of Mental Disorders-5. They are done by a WCB-accredited psychologist or psychiatrist to determine if you meet the criteria for a DSM diagnosis.
If your claim is approved
See the WCB website for details of what you might be eligible to receive from the WCB if your claim has been successful. The benefits the WCB may provide include:
- earnings and benefits you’ve lost due to your injury
- health care benefits like therapy and prescription drugs
- other health care costs directly related to your workplace injury
- in limited circumstances, retraining
The WCB requires that anyone who’s providing your health care or who you’re consulting about a workplace injury must report the information they discover. They can do this without your consent when you’re claiming benefits.
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 also contact your employer to develop a suitable return-to-work plan. In the case of sexual harassment, this might include arranging that you work at a different location from the harasser.
The thought of returning to work after the sexual harassment you experienced there can be stressful and overwhelming, as you’re going back to the place where you were harassed. Consider connecting with your support network, like friends, trusted loved ones, a therapist, or a support group. See Build a Support Network for more information.
A return-to-work plan sets out the steps you’ll need to take in order to resume your job. It is based on your injuries and what you can or can’t do at work. The plan helps your employer adapt your job to what your injury allows you to do.
Because your return to work 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.
If your claim is turned down
It’s very likely that your WCB claim for psychological injury due to sexual harassment will be denied. A high number of these claims are dismissed at an early stage in the process, often after only brief consideration. Appealing is lengthy and can be unsuccessful.
For a full outline of the appeals process, see the WCB website.
First, talk to the WCB representative who handled your claim. Ask them to explain their reasons for the decision. If you and your WCB representative can’t agree, you can file an appeal or contact the Office of the Workers’ Advocate or the Fair Practices Office.
If you are still not satisfied, submit a Worker Appeal form. You must specify which decision on your claim you’re appealing and the reasons why.
There is no time limit on when you can submit an appeal to a claim decision. However, you are encouraged to do this as soon as possible after the original decision.
You or your representative can have a copy of the information from your claim file, but you can only use it in your appeal—it can’t be made public. To get a copy, fill out a Request for Copy of File form.
The appeals officer will review your claim file to decide if the decision on your claim should be changed. The written decision will be mailed to you. If you disagree with the appeal officer’s decision, you can ask for an appeal by the Board Appeal Tribunal.
The Board Appeal Tribunal
The Board Appeal Tribunal is the final level of appeal if you disagree with a WCB decision. You must have already gone through the WCB appeal process. Submit a Worker Appeal form. There is no deadline for appeals but you should do so as soon as you can after you receive the WCB decision.
The decisions of the Board Appeal Tribunal are made by a panel of two or more members. The appeal process usually is conducted entirely in writing, but you can request an in-person hearing, which may be granted. There is no opportunity to mediate.
Board decisions are made on the basis of the material in the WCB file, but the panel also may request new information. For a thorough explanation of all the steps in the appeal process, see the WCB outline.