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 Workers’ Safety and Compensation Board because you want to be compensated for harms you suffered due to sexual harassment. This guide explains how to file a WSCB claim related to harassment, and the pros and cons of this process, so you can decide whether it’s an avenue you want to pursue.
The Yukon Workers’ Safety and Compensation Board is an organization that gives benefits and supports to people who’ve been injured at work. These benefits can include replacement of lost wages, coverage of health care costs, and permanent impairment awards. The WSCB is governed by the Workers’ Safety and Compensation Act.
Facts about the Workers’ Safety and Compensation Board
- The Workers’ Safety and Compensation Board functions like an insurance provider. Employers pay premiums to the WSCB for the people who work for them. As a result, those people are entitled to benefits if they suffer a workplace injury and employers are immune from being sued in civil court in relation to those injuries.
- About 99% of Yukon workers are covered under the Workers’ Safety and Compensation Act.
- Every year, about 1,100 claims are filed with the WSCB. Of those, roughly 20% are ruled ineligible.
- About 5% of accepted claims are for assaults, violent acts and harassment.
- Only injuries due to PTSD or involvement in a traumatic event are covered by the WSCB.
- The number of claims submitted for psychological injuries rose significantly between 2016 and 2018, from 29 to 46.
- In 2020, the Workers’ Compensation Appeal Tribunal ruled on three cases.
- Sources: WSCB 2020 annual report, Association of Workers’ Compensation Boards of Canada, CBC
If you’ve been harmed by sexual harassment at work, you might think the WSCB 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 treatment or medication for anxiety or depression.
Those are the kinds of expenses—replacement of lost wages, health care costs—the WSCB normally does reimburse. And so it might sound like a good idea to file a claim with the WSCB.
But we need to warn you: The WSCB is very unlikely to help you.
The WSCB 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 WSCB 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 a 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.
Historically, the WSCB has mostly handled claims related to physical injuries suffered by workers in male-dominated industries like construction or 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 WSCB was designed for and has a lot of experience handling.
As for psychological injuries, the WSCB does not consider any mental stress injury that doesn’t result in a “work-related injury,” and the type of injury is narrowly defined.
Realistically, then, if you apply for compensation for a psychological injury, you’ll likely 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 only about half of appeals are successful.
Psychological injury claims
The WSCB may cover claims for psychological injury when the injury occurs as a result of a traumatic event leading to post-traumatic stress disorder. Traumatic events are defined as “actual or threatened death, serious injury or violence.” Other psychological injuries that occur in the course of work, where the employment was “a significant casual factor of the injury,” and there was exposure to a traumatic event or events, are also covered in cases where there’s clear confirmation of the events.
The Yukon Workers’ Safety and Compensation Act includes a PTSD presumption. When a worker is exposed to a traumatic event at work, a diagnosis of PTSD is presumed to be work-related.
A diagnosis by a psychiatrist or psychologist based on the most recent Diagnostic and Statistical Manual of Mental Disorders-5 is required for any psychological claim.
Pros and cons of going to the WSCB
- The WSCB will provide health care assistance, including services, devices or equipment that are necessary to grant relief from a work-related injury.
- WSCB benefits can be generous. Wage replacement is up to 75% of your average gross salary before the injury.
- 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 WSCB secretly. Your employer has the right to 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.
- The WSCB narrowly defines what qualifies as a psychological injury.
- If the WSCB 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. This means they will continue to know about your personal health situation, even if you don’t work for them anymore.
- The WSCB doesn’t investigate or adjudicate whether you were sexually harassed. If you are looking for someone to say you were sexually harassed, and to punish the harasser or your employer for allowing the harassment, the WSCB won’t give you that.
- The WSCB requires a diagnosis from a psychiatrist or psychologist for a claim of psychological injury.
Will the WSCB accept my application?
- You have one year after an injury occurs to make a WSCB claim. If you’re past the one-year deadline to apply, you may still file a late application in “special circumstances.”
- To be eligible for benefits and services under the WSCB process, you must be a “worker” under the Workers’ Safety and Compensation Act.
- If you aren’t sure whether you’re covered by the act, you can call the WSCB (1-800-661-0443), contact the Workers’ Advocate Office, or seek advice from your union or a lawyer.
- The WSCB will only accept your claim if the harassment took place “in the course of your employment.” 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 travel, you may be covered for work experiences at different locations.
- For psychological injuries, the WSCB requires not only that the injury occurred in the course of your employment, but your work was a “significant causal factor” of the injury.
Contact the WSCB (1-800-661-0443) to learn about the rules that apply if you are in one of these categories:
- non-resident worker
- undocumented or non-status
- don’t have a work permit
- foreign agricultural worker
- sole proprietor of a business
The WSCB will consider the following when reviewing your claim:
The workplace harassment resulted in an injury or psychological injury during an on-the-job incident.
The psychological injury is PTSD or arose from a traumatic event.
The psychological injury was diagnosed by a psychiatrist or psychologist and is recognized by the Diagnostic and Statistical Manual of Mental Disorders-5.
The employment was a significant causal factor of the injury.
Unfortunately, this overlooks the immediate and long-term impacts the sexual harassment has had on you. It’s a good idea to connect with mental health supports, which can help you through this difficult situation. See #TK.
You may be able to get help from a lawyer for free. Here are some places that offer free or low-cost legal services:
- The Workers’ Advocate Office provides free advice and information to injured workers. The office can help you interpret the Workers’ Safety and Compensation Act and WSCB policies, and prepare for an appeal. In some cases, it may offer free legal representation.
- The Meet with a Lawyer Certificate Program, an initiative of the Law Society of Yukon, will provide you with a certificate to present to a lawyer from an approved list for a half-hour $30 consultation that will determine if you need a lawyer.
- The Law Line (1-866-667-4305) is run by the Yukon Public Legal Education Association. Operators are knowledgeable about the law and can provide legal information, but do not offer legal advice. They may be able to refer you to a lawyer.
- The Yukon Public Law Library in Whitehorse provides free access to various books, legislation, legal databases, and computer workstations for doing legal research.
- The Workplace Sexual Harassment Legal Clinic can provide legal advice up to the point of litigation. Its in-person office is in Whitehorse and it can schedule remote calls. The clinic plans to send staff out to visit other Yukon communities on a monthly basis.
- 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’ and paralegals’ 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.
Social and health supports
- Yukon 211: This community and social services helpline is available 24 hours a day by phone or online. It can put you in touch with many services, supports, and programs.
If you choose to go to the WSCB, you have one year to submit a claim. Find more information about the application process here.
The WSCB requires three reports: your report to your employer; your employer’s report; and a report from your health-care provider. Once you have reported to your employer, file your WSCB claim by completing the Application for Compensation Benefits form online. You can also send it by fax (1-867-393-6279) or mail:
Workers’ Safety and Compensation Board
401 Strickland Street
Whitehorse, YT Y1A 5N8
The WSCB may follow up on your claim by calling you or your employer if it needs more information. On average, the WSCB can decide on a claim within 14 days of receiving all the forms and information. Expect it to take longer for psychological injury claims.
Your employer’s report
You must first report your injury to your employer. Your employer then must submit an Employer’s Report of Injury/Illness to the WSCB. This will include information about you, your job, and your psychological injury.
The form asks your employer whether they want to dispute your claim and to provide their reasons why. It is very likely your employer will do this.
A health professional’s report
Your health care provider must send a report to the WSCB detailing your injury and treatment plan within two days of your health care visit. If you are claiming for post-traumatic stress disorder or another psychological injury, a psychiatrist or psychologist must provide a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders-5 and fill out a Psychological Initial Assessment Report. The WSCB may also require a Psychological Functional Abilities Form.
After the forms are filed
Once all the forms are submitted, the claims branch will consider your case.
The Workers’ Safety and Compensation Act states a WSCB decision-maker, hearing officer, or appeal tribunal must make decisions, orders and rulings based on the merits and justice of the case. This means it can reach decisions in a flexible manner with a view toward the facts of each case.
An independent health examination
The WSCB may ask you to undergo an independent health examination if it thinks more medical information is necessary to decide on your case.
If your claim is approved
You will receive a decision letter from the WSCB once it has approved your claim.
You may be eligible to receive:
- money to replace income you’ve lost because of time missed from work due to your injury
- health care assistance
- compensation and/or support for return-to-work and rehabilitation assistance/vocational rehabilitation
See the WSCB Benefits page for a detailed outline of what you might be awarded if your claim is successful.
The Workers’ Safety and Compensation Act requires health care providers you’re consulting about a workplace injury to report the information they discover to the WSCB. They can do this without your consent when you’re claiming benefits.
The WSCB only covers health care costs for psychiatrists and psychologists who are licensed and have a service agreement already in place with the WSCB.
Returning to work
The WSCB’s focus is on trying to get you back into the workplace.
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 support group. See Build a Support Network for more information.
A case management team will work with you, your employer, and your health professional, if necessary, to develop a return-to-work plan or work transition plan.
Early and Safe Return to Work plans are developed to get you back to your pre-injury job. Your employer is required to modify the work or workplace, within reason, to accommodate your needs so as to help you return to work.
You should tell your health care provider any concerns you have about going back to work. Your Early and Safe Return to Work plan will be partly guided by what they say about your health and they may recommend specific accommodations on your behalf. Return-to-work plans can be detailed and set out any permanent accommodations you might require.
If the WSCB determines you are unable to return to your previous job, you may be eligible to receive training for a new job. The WSCB will work with you to develop a work transition plan, and it will cover the costs of the training.
If your claim is turned down
It is likely the WSCB will deny your claim for psychological injury due to sexual harassment. The grounds for a psychological injury claim are very narrow. Appealing is lengthy and often not successful.
You may still decide to appeal, and if you do, you must file a Request for Reconsideration within one year of the WSCB decision. This is an internal, fresh review of the decision and is the first level of appeal.
To get a copy of your entire claim file, you can complete the Request for Disclosure form and submit it to the WSCB. However, before filing a request for review it is highly recommended you contact the decision-maker for more information to resolve any miscommunication.
For a full outline of the appeals process, see Reconsiderations and Appeals.
A successful appeal decision will include details on what benefits you are eligible for, how much you should receive, and how long you can collect benefits.
If you weren’t successful, you can file a final appeal to the Workers’ Compensation Appeal Tribunal.
The Workers’ Compensation Appeal Tribunal
The Workers’ Compensation Appeal Tribunal (WCAT) is independent of the Workers’ Safety and Compensation Board and is the final level of appeal if you disagree with a decision.
WCAT must receive your appeal within 12 months of the WSCB reconsideration decision.
See the WSCB outline of the appeal process for what to expect.
WCAT decisions are made within 45 working days after the hearing unless the chair of the appeal committee extends the deadline. The appeal process can be done in person or through document review only. The WCAT may reverse, modify, or confirm the decision of the hearing office.
WCAT decisions are final.