Recent decision highlights 'significant shift’ in acceptance of psychological injury claims in high-risk jobs, says lawyer — so Canadian employers shouldn’t dismiss trauma as ‘part of the job’
A recent Nova Scotia Workers’ Compensation Appeals Tribunal decision involving a long-serving correctional officer highlights how Canadian decision makers are treating PTSD and psychological injury claims in high-risk jobs, even where employers or boards once saw those events as inherent hazards of the role.
For Toronto employment lawyer Aman Chaggar of Whitten Lublin, the Nova Scotia appeal decision reflects a broader shift in how Canadian legal systems are approaching psychological harm in the workplace.
“Claims and injuries stemming from psychological issues are becoming more and more common,” he says.
“I've seen a significant shift in the acceptance of these claims, and these claims coming about. I think that's just because society, as a whole, is beginning to recognize mental health, and the seriousness of balancing your mental health – especially if you're working in a high-risk type of role.”
Proving workplace injuries: psychological versus physical
As Chaggar explains, when a worker slips on a wet floor, causation of a broken bone is rarely contested. However, with psychological injury, especially in fields where stress is constant, the evidence is rarely straightforward.
“You can slip and fall at work, and if you twist or break your ankle, it's very clear cut. Post traumatic stress disorder doesn't usually occur until after the fact,” says Chaggar.
That lag can lead to complications, he adds, as employers can point to all the variables between an incident and a claim as reasons to doubt its validity: “I don't think it's as clear cut yet for employers or for these entities to figure out. I think we're still working on that as a society.”
Employment lawyer Brent Marks of Nelligan Law in Ottawa notes that even where statutes now include presumptions for certain kinds of trauma or for designated highrisk occupations, evidence still matters.
“There's still going to be a need to demonstrate medical evidence which supports that there has been an injury, and when it occurred,” he says.
“But there is a presumption that such an injury … is a workplace trauma.”
How employers respond when trauma surfaces at work
The Nova Scotia tribunal did not simply tick off a list of violent or distressing events. It considered the worker’s repeated attempts to raise concerns and how management responded. Those interactions formed part of the causal and contextual picture around his PTSD.
Marks says that when an employee comes forward describing exposure to traumatic incidents and resulting distress, the employer’s initial task is to understand and reduce risk.
“Ultimately, the determination of claims for any sort of work-related injury is going to fall under the Workplace Safety and Insurance,” he notes — but stresses that the facts that body considers will largely come from what the employer did or did not do. “They need to determine, if it's not something they're already aware of, what that issue is, and seek to mitigate it as much as possible.”
Chaggar notes that workers in high-risk jobs may take time away from the workplace, then return to environments that have not substantively changed.
“It's important to have a good, streamlined way for reporting to occur,” he says, “and for any type of corrective actions that the employer is taking, or advice that the employer is providing to that employee.”
Without that structure, he adds, the inherent power imbalance in the employment relationship can leave workers feeling exposed – this absence of clear employer response is something he sees regularly, he adds.
“I have cases where the employers don't do anything,” he says.
“Employees are saying, ‘Hey, I feel like I'm being retaliated against here for exercising my rights. I feel like I'm being discriminated against because of my medical condition.’ And employers just say, ‘Hey, that's how it is,’ or ‘Get over it, carry on.’ That's just not good enough.”
Culture, records and the long arc of psychological harm
The tribunal’s reasons in the Nova Scotia case relate dates of incidents, contents of letters, assessments by psychologists and psychiatrists. That paper trail, built over years, allowed the tribunal to connect the worker’s present condition to specific events and to the employer’s handling of his concerns.
“It's helpful if they have a streamlined process, either a practical guide or some sort of policy or procedure that says, ‘Hey, if complaint ‘X’ comes to us, this is the tunnel that it's going to go through. If complaint ‘Y’ comes to us, this is the tunnel it's going to go through.’”
For Chaggar, the emphasis on documentation is not simply about legal selfprotection, though he acknowledges that is part of it. A structured pathway for complaints, he says, gives employers evidence of what they knew and how they responded.
“You have all your T's crossed, and your I’s dotted,” he says.
“So if anybody ever wants to make an issue out of it, or comes looking for stuff, saying that ‘Hey, when did these incidents occur? What was discussed? What was done?’ the employer actually has record-keeping they can provide, and that's valuable. Otherwise, it can bite them.”
Sometimes, he adds, the catalyst is less a single dramatic event than a steady drip of unresolved conflict. He points to situations where employees can attempt to bring these issues (such as “gossip circles” and the like) to HR, but are not taken seriously.
“When people don't feel like their concerns are being handled appropriately, it begins to negatively impact their mental health,” he says.
“I've seen that time and time again in my practice, and it's an unfortunate reality of it, but like I said, it comes back to good record keeping.
