New legal standards for psychological safety in workplaces, from Roper Greyell's Alissa Demerse
This article was produced in partnership with Roper Greyell
In British Columbia in particular, expectations around psychological health and safety at work are shifting—and employers are being required to do more. “WorkSafeBC wants to be the leader within Canada in this space,” says Alissa Demerse, partner at Roper Greyell LLP and practice lead for workplace safety. “We’re seeing significant evolution here—especially around employers’ obligations when it comes to prevention. What steps do you have to take to prevent psychological injury in the workplace and to ensure worker feels psychological safe at work?”
At the same time, the legal system is further defining what employees can claim when those preventative measures fall short. That includes claims related to chronic stress, traumatic events, and complex interpersonal conflict. On March 6, the B.C. Supreme Court released its decision in Pickering, a constitutional challenge to the province’s mental health provisions under the Workers Compensation Act. “That decision is of interest to a lot of people,” says Demerse—and for employers, it marks an important moment of accountability.
Demerse has been practising since Roper Greyell’s founding in 2006 and today leads the firm’s workplace safety group. Her practice operates at the intersection of labour, employment, human rights, and workers’ compensation law, with a strong focus on mental health and injury prevention. It’s a legal area that requires not only technical skill, but empathy.
“I’ve never met an employer in British Columbia that wants a worker to be hurt at work either physically or psychologically,” she says. “But while we like to say all accidents and incidents are preventable, the truth is they’re not always avoidable. And that creates a real tension.”
Demerse regularly advises employers facing investigations, workplace crises, and major safety incidents. Her legal insight became especially relevant in the context of the recent decision of the Supreme court cited as the Pickering decision.
The case raised a fundamental question: why does the law apply different causation standards to physical and psychological injuries? “There’s one causation standard if you’re physically hurt at work, and another if you’re psychologically hurt,” says Demerse. “The argument was that this distinction is discriminatory.”
Under the current framework, psychological claims must meet a “predominant cause” threshold—the workplace must be the largest or most significant contributing factor to the injury. “The worker has to show that the predominant cause of their psychological injury was the workplace,” she explains. “And that’s not always easy, because people’s mental health is shaped by many things—family experience, genetics, life history, trauma events.”
In Pickering, competing experts debated whether it’s even possible to quantify the contribution of each factor to a mental health condition. The court ultimately accepted the opinion that most psychological injuries are more likely to have non-workplace causes. “There’s ongoing debate about who can diagnose and who can determine cause,” Demerse says. “And courts struggle with that—because assigning a percentage to each factor is rarely clear-cut.”
Public attitudes around workplace behaviour are playing a role in how claims are understood and assessed. B.C.’s workers’ compensation regime has gradually expanded to include psychological claims—but the definitions continue to evolve. What began as coverage for mental health issues stemming from physical injuries or acute trauma has grown to include chronic stress and “significant stressors,” such as bullying or harassment.
“Our society has become more aware of conduct that used to be tolerated but no longer is,” says Demerse. “That shift has influenced how adjudicators evaluate behaviour - particularly when it comes to workplace conflict and worker interactions with supervisors.”
But determining whether something amounts to bullying or harassment remains complex. “People can have interpersonal conflict at work. That alone doesn’t meet the threshold,” she explains. “It’s often the manner in which someone responds to the conflict or manages conflict that becomes problematic. While the workplace is not a debating society, we don’t always agree – it is most important to consider how that is expressed by workers to management and then how management responds to workers – both in the moment and in the eventual outcome”
When it comes to adjudicating mental disorder clams in B.C., WorkSafeBC considers not just the conduct itself, but also the individual’s subjective experience and characteristics. They look at the subjective impact on the person, things like pre-existing anxiety or trauma - which makes these cases deeply personal and legally intricate.
As psychological claims become more common, employers must understand that handling conflict poorly is no longer just a reputational risk—it can lead to legal exposure. The Pickering ruling also narrowed the “labour relations exception,” which previously protected employers from liability if stress resulted from standard workplace decisions, such as discipline or termination. Now, only decisions made in good faith and aligned with a generic, bona fide process are protected.
“But what is a ‘generic process’? That’s not clearly defined yet,” says Demerse. “And that’s exactly why employers need to be paying attention to how management decisions are made—and how managers conduct themselves. Employers need to also monitor how the WorkSafeBC will adjudicate claims post-Pickering”
According to Demerse, where employers can get it wrong is not responding early enough to emerging issues. “Often, smaller issues are left unaddressed because they don’t seem serious. But then you end up with a complaint that spans one, two, and even five years when issues are left to fester or workers are left to resolve matters on their own.”
Another pitfall is trying to mediate before properly investigating. “In Pickering, management tried to mediate the harassment complaints rather than investigate the complaints. That can backfire,” she says. “While investigations can also inflame a situation, failing to take clear action often or reach a jointly acceptable resolution can make a scenario worse.”
Many employers also assume that having a written policy is enough. “I see this all the time—they’ve got the system on paper, but no one is checking to make sure it’s actually being followed,” Demerse says. “That’s where I come in, helping clients find the gaps and improve. It’s about building systems for continuous improvement.”
Training, she says, is often the missing link. “Are you supporting your managers with training? Are you managing your management team or given them the tools to be effective managers? Because ineffective or inconsistent decision-making could start attracting liability. Authoritarian management style has become a thing of the past.”
And while the legal landscape is growing more defined, it’s not becoming easier. “This is a complicated issue for employers. It creates immense stress within businesses too,” she adds. “But the direction we’re moving is clear: psychological safety is part of an Employer’s compliance obligations now—not just a cultural aspiration.”
