A recent WSIA Tribunal decision has added more complexity to the existing labyrinth of the Workers Safety and Insurance Act and civil and human rights proceedings.
The existing Ontario legislation resulted from a well-intended amendment designed to allow for workers’ compensation benefits when the employee had suffered work related emotional distress. The substance of the Act has been for years intended to replace civil claims for injuries in the workplace with a no-fault scheme to provide for lost income and other benefits. The amendments allowing claims for such emotional harm suffered in the workplace, however, were not well thought out. The revisions to the statute have created confusion as to the ambit of the Act and its impact on civil claims arising from workplace abuse.
The amended statute allows a civil action for aggravated damages or any tort claim to proceed, where such arose from: 1
- Termination of employment or discipline imposed;
- A change in working duties;
And as interpreted to date:
- A constructive dismissal claim; and
- A breach of the Bhasin duty of honest performance;
- Examples of finding no WSIA jurisdiction include “terminations, demotions, transfers, discipline, changes in working hours or changes in production expectations” as such are decisions relating to employment functions. 2 An example of such conduct was found in one case in which the employee was demoted due to an allegation of a human rights violation. This met the exception to the exception and the Act was applied. 3
- Claims for WSIA benefits are generally not considered for interpersonal conflict “unless the conflict amounts to workplace harassment, or results in conduct that a reasonable person would perceive as egregious or abusive”. 4
The corollary to the above is that a claim made for workplace abuse in the continuum of the employment relationship, and not due to termination or any other exempted ground, which has resulted in emotional suffering, will be caught by the Act and not allowed to proceed civilly.
Civil claims which are not allowed are “generally confined to actions for torts causing work-related injuries for which the plaintiff would be entitled to claim benefits under the plan” 5
More to the point, the issue has arisen as to whether this statute will apply to allegations of human rights abuse in the workplace.
Human Rights by the Administrative Process
A 2016 decision of the WSIA Appeals Tribunal examined the terms of the statute, which by S. 31 allows a motion before it to determine if the right to sue has been removed. 6This section states as follows: 7
(1) A party to an action ………….may apply to the Appeals Tribunal to determine, (a) whether, because of this Act, the right to commence an action is taken away; (b) whether the amount that a person may be liable to pay in an action is limited by this Act; or (c) whether the plaintiff is entitled to claim benefits under the insurance plan.
The decision allowing the human rights complaint to proceed was based on the wording of this section which interpreted “action” to be a civil claim and not a human rights complaint brought administratively.
This is a creative interpretation, as this section is procedural in nature. It defines who may come to the Tribunal to seek a dismissal of the civil claim. The substantive section of the Act, S. 26(2), however, speaks to the denial of all remedies, statutory or otherwise:
Benefits in lieu of rights of action
(2) Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependant has or may have against the worker’s employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer.
The same case noted that “the Tribunal does not have the statutory authority to make a finding that the WSIA removes the plaintiff’s right to bring an application under the Ontario Human Rights Code".
The Act preferably should state in its own words whether it was intended to replace human rights protections in the workplace, as opposed to this and the interpretative decisions which follow. The failure of the Act to do so has resulted in the slicing and dicing of the human rights remedies to date by decisions of the Appeals Tribunal. The Divisional Court has yet to review this issue.
Human Rights Violation by Civil Action
A 2016 decision of the WSIAT allowed the plea of a breach of human rights to proceed and refused to allow other aspects of the claim. The human rights was conceded by the moving party. There was no reasoned decision on this issue. That being said, consent should not allow for jurisdiction where there is none. This decision has not been referenced in the cases below.
In a subsequent November 2022 decision, Yale v Stonemasons 395/22, the Appeals Tribunal found that the claim made for a human rights violation by civil action was not caught by the statute. The civil case had alleged that the worker was terminated due to a physical disability and had suffered damages, including lost income. This raised the issue of the Act’s benefits under the return to work provisions under s. 41. This was a principled decision:
In summary, given the separate purposes of the WSIA and the Ontario Human Rights Code, and the entirely separate systems, we are not persuaded that section 41 was ever intended to act as a bar to a worker seeking compensation under the Human Rights Code from the Ontario Human Rights Tribunal. In our view, if it was the intent of legislators to limit the scope of a worker’s claim under the Human Rights Code as a result of a finding of a re-employment breach it would be stated in the statute. It is not.
The fact that the human rights claim was commenced by a civil action was not material. The Tribunal found that the civil action asserting a human rights violation “must be akin to an application before the Human Rights Tribunal":
[164] Therefore, if this Tribunal does not have jurisdiction to limit an application before the Human Rights Tribunal, we find it would be inconsistent to then limit an action for a breach of human rights before a Court, especially when the reason for the action may be related to reducing the cost of litigation by commencing a single action, instead of commencing multiple actions or applications.
This decision refused to follow a prior Tribunal decision which had come to a contrary conclusion. 8 The civil claim in this instance also involved an assertion that the plaintiff had been terminated due to a medical disability which had been suffered in an a motor vehicle accident while employed by the defendant. An allegation was made in the civil claim that the plaintiff was entitled to a remedy under the Human Rights Code.
The result in the earlier Gannon case was that the Tribunal limited the damage claim for a breach of human rights to injuries to dignity, hurt feelings and self-respect. The claim for lost income due to the human rights violation, as alleged, was denied. In this case, the Tribunal stated:
Based upon a reading of the provisions of section 46.1(1) of the Code it would appear that there is the potential for a court in a civil proceeding to award damages for matters other than compensation for injury to dignity, feelings and self-respect. This might possibly include compensation for actual lost wages that resulted from an act of discrimination based upon disability when an injured worker has difficulty in becoming re-employed due to an injury. In the case of a workplace injury an award of such damages would be for a purpose very similar in nature to the purpose for which compensation is payable for Loss of Earnings benefits under section 43 of the WSIA or is payable for breach of a re-employment obligation under section 41 of the WSIA. This might lead to a conclusion that a civil action for breach of the Code based on disability was in reality an injury related tort claim in disguise seeking a court based remedy similar in purpose to that of an award of LOE or re-employment benefits under the WSIA.
The reasoning, with respect, is suspect as the human rights claim was clearly based on the event of termination, which is exempted from the Act’s coverage.
Returning to the Yale decision, the Tribunal in Yale declined to follow the Gannon reasons and concluded that the Tribunal was without the authority to limit the damage claim. It looked to s. 31 of the Act and reasoned that it spoke only to “actions and does not speak to damages”. 9 It also, quite rightly, spoke to the policy issue of not requiring litigants to seek compensation for the same wrongful act in different forums.
This was the status of the law on this subject until the recent April of 2024 decision in Prince v Apple, 1267/22. The plaintiff had alleged in the civil proceeding that she had been adversely treated by Apple due to her medical disability. She had been off work for medical reasons for two periods in 2016 and again from March of 2017 forward. She did not return to work and commenced the civil action in March of 2018. She had claimed that she was constructively dismissed based on these allegations, which were alleged to have created a toxic work environment:
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permitted the acts of harassment, bullying and abuse to repeatedly occur over a 13-month period;
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failed to adequately prevent and/or respond to the respondent’s harassment complaints;
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failed to prevent and/or rectify the poisonous and toxic work environment perpetuated by A.;
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failed to discharge its duty to the respondent to provide her with a workplace free from harassment;
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failed to investigate the harassment to which the respondent was subjected, including failing to interview the respondent regarding her complaint; and
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failed to discipline A. for the harassment to which she subjected the respondent.
The Tribunal allowed the constructive dismissal claim and its associated relief for aggravated and punitive damages to proceed.
With respect to the assertion of a human rights violation, the Tribunal referred back to the Gannon decision and determined that, given that the human rights issue was raised by civil action and not an administrative complaint, there was jurisdiction to assess the motion to deny the human rights remedy. Curiously, the more recent contrary decision of Yale disagreeing with Gannon was not referenced in the reasons.
The Tribunal in Prince allowed the human rights claim for damages for injured feelings but not the lost income associated with the human rights abuse during the employment relationship. This was distinguished from the lost income claim for fair notice attributable to the constructive dismissal claim:
I find, however, that the claim may not proceed in respect of lost wages (i.e., the second portion of 1(i) for “loss of earnings in the amount of at least $9,000.000.00”) or other economic loss that may have been caused by the alleged constructive dismissal as a result of the respondent’s workplace injury, beyond any loss experienced due to a lack of an appropriate notice of termination being provided. In my view, this reasoning is also consistent with the Divisional Court’s opinion in Morningstar that Ms. Morningstar’s claim for lost wages was properly barred as it is a remedy available under the WSIA through loss of earnings benefits.
It is not clear from the pleadings referenced in the decision, over and above the notice period, as to what such incremental lost income claim may be.
The end result of these decisions is that:
- A claim for human rights brought by the administrative process is not subject to a WSIA denial motion;
- A claim for lost income brought by civil action for a human rights violation may be barred where it relates to a workplace abuse during the continuum of employment.
- A claim for injured feelings due to a human rights violation will be allowed to proceed no matter if it relates to termination (or other exemptions presumably) or the continuum of employment.
The logic of distinguishing a human rights issue based on whether the claim has been brought by administrative procedure or court action makes no sense. The reality is that the amendments to the Act allowing for access to benefits based on an emotional distress claim, were not well thought out and that further revisions are required. The alternative is the Divisional Court needs to clarify the law. It is pure nonsense to promote multiple proceedings.