State News : Canada

Workers’ compensation laws vary in each of the 10 Canadian provinces and 3 territories. Each of the distinct regimes are government-administered within each jurisdiction.  While some mandate coverage to all employers operating in the province or territory, some impose it only within certain industries.

Even though the particularities of the legislation and their corresponding health and safety regulations vary from one province to the next, it is possible to foresee  certain similar issues that will be of interest to all employers as we start this new year.

While we have no crystal ball, we envision that the five following topics will be trending across Canada in 2022:

1.       COVID-19 Workers’ Compensation Litigation

The upcoming months will undeniably be filled with contestation of claims relating to COVID-19 as a compensable injury. While the appeals process before the various administrative organisations are now exhausted, we predict a trend of cases behind tried [ not sure what this means ?]. Some of these cases will involve complex medical evidence regarding pre-morbid conditions, in provinces which allow for an associated cost-relief. The months to come will build a foundation for these cases that will need to be monitored closely and will vary from one province to the next. Presumptions integrated into applicable legislation may facilitate the demonstration that a COVID-19 spread in a given community may have in fact be contracted [ at work ?]

2.       Teleworking Workers’ Compensation Litigation and application of OHS rules in this setting

During the pandemic, a large proportion of the workforce was suddenly compelled to work for home, sometimes in inadequate settings. Some employers have  decided not to recall certain employees to their establishment and will keep them in their remote settings on a permanent basis, either on a hybrid mode or on a full-time basis. When injuries occurred in that context, some workers brought compensation claims and the upcoming months will clarify the boundaries applicable to them and the resulting worker entitlements and liabilities/costs for employers.  Given the unique circumstances of the pandemic, existing precedents are simply insufficient to anticipate these rulings. As an example, when an employee logs off their computer, they  are immediately ”off”  of work, unlike in the workplace where they still have to walk to the break room or leave the premises. How will tribunals rule on these claims, where the private and professional sphere of the worker overlap, in an environment over which the employer clearly has no control? Similarly, how far will employers need to improve their control over the worker’s private residence to prevent the risks of injuries? As some provinces are amending their laws or extending their definitions of the workplace, accordingly the balance between the employee’s right to privacy and the employer’s exercise of due diligence in view of preventing compensable injuries will be increasingly challenging to strike. As our view of what is and what is not the “workplace” has changed, so too will the laws regarding this issue.  

3.       Coverage of employees working outside their province of origin

As the pandemic raged on, some workers elected to work remotely outside their “home” province  during ,  some even internationally. Several claims were not recognized under these conditions as being compensable under applicable provincial laws. Case law arising from these claims will be another legacy of the pandemic to be expected this year.

4.       Mandatory Vaccine Policy Challenges

Following the Canadian government’s mandate to have all federally-regulated employers enact a vaccination policy by the end of Fall 2021, several employers have adopted such policies and imposed them on their sub-contractors and  as well. Several provincial governments also imposed on their healthcare sector employees' similar policies, as well as to all subcontractors’ employees entering the premises.  As a result, we may anticipate numerous and varied claims filed by employees who were negatively impacted by these policies to be heard in the upcoming months.

5.       Litigation Surrounding Misclassification or Defective Coverage of Dependant Workers under provincial workers’ compensation regime

With the rise of the gig economy comes unpredictable liability: Some provincial regimes with mandatory coverage require employers to cover their “dependent workers” as if they were regular employees. The conditions applicable to these requirements  vary from one province to the next and we expect that in the  months and years to come  a greater number of verification notices from  workers compensation boards raising these issues. Where applicable this may also give rise to substantial backdated premiums owed by employers.. Close analysis to the regime applicable in the provinces where an employer operates in Canada should be undertaken to evaluate whether this risk is a materi alone.