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Employer Misconduct an Attempt to Dissuade an Employee From Making a WSIB Claim
Question: What are the consequences for an employer trying to prevent a worker from filing a workplace injury claim in Canada?
Answer: If an employer attempts to discourage an injured worker from reporting an injury or filing a compensation claim, they may face severe penalties under the Workplace Safety and Insurance Act, 1997. This includes fines up to $500,000 for organizations or $25,000 and possible imprisonment for individuals, as well as reputational damage. Understanding your rights as an employee and the importance of adhering to legal obligations can help protect both parties' interests. Need advice?
Answer: Melville Legal is here to help guide you through the complexities of workplace injury claims.
What Could Happen If An Employer Tries to Get An Injured Worker to Avoid Making An Injury Claim?
The Workplace Safety and Insurance Act, 1997 Contains Sections That May Result In Significant Penalties Imposed Upon An Employer That Attempts to Persuade or Prevent An Injured Worker From Making An Injury Claim.
Understanding the Obligation to Refrain From Attempts to Dissuade the Making of Claims By An Injured Worker
For various reasons, all wrongful, an employer may wish to avoid the involvement of the Workplace Safety & Insurance Board following an injury to employee. Accordingly, and improperly an employer may engage in conduct intended to dissuade the employee from filing a claim that seeks compensation or other workplace injury benefits.
The Law
The Workplace Safety and Insurance Act, 1997, S.O. 1997, Chapter 16, Schedule A, specifically addresses the concern of attempts by an employer to dissuade an injured employee from filing a claim whereas such states:
Prohibition, claim suppression
22.1 (1) No employer shall take any action, including but not limited to the prohibited actions set out in subsection (2), in respect of a worker with the intent of,
(a) discouraging or preventing the worker from filing a claim for benefits under section 22; or
(b) influencing or inducing the worker to withdraw or abandon a claim for benefits made under section 22.
Same
(2) For the purposes of subsection (1), the following actions are prohibited:
1. Dismissing or threatening to dismiss a worker.
2. Disciplining or suspending, or threatening to discipline or suspend a worker.
3. Imposing a penalty upon a worker.
4. Directly or indirectly intimidating or coercing a worker with threats, promises, persuasion or other means.
Administrative penalty
(3) An employer who contravenes subsection (1) shall pay the prescribed amount to the Board. This payment is in addition to any penalty imposed by a court for an offence under section 155.1.
Potential Penalties
The wrongful attempt to dissuade an employee from claiming injury benefits raises the possibility of a significant penalty whereas the Workplace Safety and Insurance Act, 1997, prescribes the potential of a fine or imprisonment or both. Specifically, the Workplace Safety and Insurance Act, 1997, states:
Offence, claim suppression
155.1 An employer who contravenes section 22.1 is guilty of an offence.
...
Penalty
158 (1) A person who is convicted of an offence is liable to the following penalty:
1. If the person is an individual, he or she is liable to a fine not exceeding $25,000 or to imprisonment not exceeding six months or to both.
2. If the person is not an individual, the person is liable to a fine not exceeding $500,000.
Fines
(2) Any fine paid as a penalty for a conviction under this Act shall be paid to the Board and shall form part of the insurance fund.
As above, a penalty for an offence, which is payable to the Workplace Safety and Insurance Board, may be very significant.
An interesting issue and decision arose within Eynon v. Simplicity Air Ltd., 2021 ONCA 409, which was a civil litigation brought about following a determination by the Workplace Safety and Insurance Board that a workplace incident arose due to horseplay between workers rather than as an actual workplace accident, whereas the Court of Appeal refused to deny a punitive damages award that was granted at Trial and which was supported, partly, by the lack of a penalty being imposed by the Workplace Safety and Insurance Board. Specifically, in the Eynon case, it was said:
[12] There was sufficient evidence that a properly instructed jury, acting reasonably, could have awarded punitive damages. The supervisors’ instructions to an injured employee to falsely report that he was injured at home, without more, warranted an award of punitive damages. The jury could properly regard these instructions as misconduct offensive to ordinary standards of decent conduct expected of an employer and could be properly described as highly reprehensible. Such instructions contravene s. 22.1 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. (“WSIA”), and constitute an offence under s. 155.1 of WSIA. Had the appellant been prosecuted and a penalty imposed under s. 158(1) of WSIA the need for punitive damages would have been lessened: see Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 123.
Summary Comment
An injured employee has the right to report an injury, and to seek compensation, among other benefits, from the Workplace Safety and Insurance Board. An employer has a duty to refrain from unduly influencing, or attempting to influence, an employee from reporting an injury and making injury compensation claims.