Issue of Workplace Injury

The question has arisen as to whether a finding made by the workers’ compensation tribunal as to the physical ability of a worker to return to work still nonetheless allows the worker the right to present a complaint of discrimination due to physical or mental disability under the relevant human rights statute. That is, but one example, of a human rights issue which may be argued due to a workers’ compensation application.

There is a fundamental difference between the issue to be decided by the workers’ compensation regime and that of the human rights. The former rules only on work related accidents. The latter deals with all disability issues no matter the origin.

For that reason, an employee who has presented a workers’ compensation claim and has failed to show a proper context for such recovery ¹due to a lack of jurisdiction will nonetheless be entitled to proper accommodation under the human rights process.  This should not be startling proposition but many employers examine their obligations through a one dimensional lens.

There are other distinctions of a similar calibre between the two processes.

Return to Work Issues

The human rights statute and the workers’ compensation process may each apply concurrently to such an issue as a return to work following a workplace injury. The choice of jurisdiction must be determined. If the issue lies within the jurisdiction of the workers’ compensation, the human rights issue or Charter issue must be raised in the context of the workers’ compensation application.

The workers’ compensation process is fundamentally different from that of the human rights issue, apart from the starting point of a workplace injury.

Ontario’s workers’ compensation legislation is typical of the statutes across Canada which require a specific number of employees and a set time period of employment, such as 20 employees and one year to allow for re-employment obligation. The obligation to re-employ, when applicable, is not applicable once two years have passed from the work-related injury.

There is no actual reinstatement remedy under this process where the employer has failed in this obligation. There is financial compensation mandated but this is a far different form of relief when contrasted to the dramatic lost income and reinstatement remedies under the human rights process.

B.C. has recently amended its legislation dealing with this issue of the employer’s obligation to allow for a return to work. This provision is much different from that of Ontario and contemplates a real life obligation to allow for a return to work. That being said, the obligation exists for a limited time period, which is 2 years from the date of the injury.

Certain workers’ compensation statutes offer a test of the employer’s obligation to re-employ which is not based on the test of “undue hardship” but rather “suitable employment”.

New Brunswick, Yukon, N.W.T., Quebec all use this standard of “suitable employment”, as does the new law in B.C.

P.E.I., Nova Scotia, Manitoba and Ontario use the test of “undue hardship” as required by human rights law. P.E.I.’s statute requires the worker be given the “first available suitable work” which implies that the accommodation is not immediate.

It is very much in debate as to whether these provisions show compliance with Charter values and human rights statutes. Ironically, a worker’s position may be well improved by his assertion that his disability was not work related, particularly where there exists disability insurance to provide immediate financial solace.

Again, the propriety of these issues may be raised in only one forum. If there is no jurisdictional eligibility for workers’ compensation benefits and the employer has failed to offer proper accommodation, the human rights process should be pursued.

1. Such as in the instant case, a pre-existing physical disability which was not covered by the workers’ compensation scheme, Paris v Bramic Creative (Aterman)