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Employer Misconduct an Attempt to Dissuade an Employee From Making a WSIB Claim
Question: Can an employer in Canada face consequences for deterring an injured worker from filing a claim?
Answer: Yes, under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, employers are prohibited from attempting to dissuade workers from filing injury claims. Violations can lead to significant penalties, including hefty fines or imprisonment. To ensure your rights are protected, Ajodhia Legal Services offers a free 30-minute consultation for immediate legal support.
Can An Employer Be Punished For Attempting to Persuade An Injured Worker From Submitting 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 improper reasons, an employer might try to avoid the reporting of a worker injury to the Workplace Safety & Insurance Board. During the effort to avoid reporting, the an employer may engage in conduct intended to discourage the employee from submitting a worker compensation claim or other reporting of the workplace injury.
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 is stated above, the fine for attempting to discourage an employee from reporting a workplace injury and making a compensation claim is significant. Where such a fine arises, the fine is payable to the Workplace Safety and Insurance Board.
Interestingly, in the case of Eynon v. Simplicity Air Ltd., 2021 ONCA 409, which was a civil liability case brought after a determination by the Workplace Safety and Insurance Board that an incident arose from horseplay between workers rather than as a genuine workplace accident, the Court of Appeal upheld a punitive damages award granted at Trial that was supported, in part, by the lack of a penalty imposed by the Workplace Safety and Insurance Board. In the Eynon case, the Court of Appeal specifically 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.
NOTE: A significant volume of inquiries regarding “lawyers close to me” or “top lawyer in” typically signifies a desire for prompt, proficient legal assistance instead of a particular designation. In Ontario, “licensed paralegals” are governed by the same Law Society that regulates lawyers, and they have the authority to represent clients in specified litigation cases. Advocacy, legal assessment, and procedural expertise are fundamental to this function. Ajodhia Legal Services provides legal representation within its licensed parameters, focusing on strategic positioning, evidentiary preparation, and compelling advocacy designed to secure efficient and favourable outcomes for clients.
