Introduction
The workers’ compensation plans in Canada were founded on the recommendations made in 1913 by Ontario Chief Justice William Meredith. This led to the first provincial plan in Canada which became law in 1914. This statute became the model for succeeding plans in Nova Scotia, British Columbia, Alberta and New Brunswick by 1918. All provinces have since created similar plans.
The essential theme of this scheme is to provide financial compensation to workers injured in their employment activities without regard to fault. The bargain created by the legislation is that, in exchange for such benefits, the employee surrenders any right to sue civilly for damages. The principles advanced by C.J. Meredith were as follows:
- The system does not require a finding of liability.
- The worker and the employee cede the right to sue one another.
- The cost of the compensation system is shared by all employers who contribute to a common fund.
- A fund is established to guarantee that compensation monies will be available for all injured workers.
- The Board operates independently, distinct from government and both autonomous and non-political.
A good review of the spirit and intent of the legislation is seen in the 1997 Supreme Court decision in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board).
Question
The issue in controversy in this review is what impact this scheme has upon civil lawsuits due to mental distress or aggravated damages allegedly suffered by a worker due to the conduct of its employer, as reviewed here.
The law on the issue of the interplay between workers’ compensation entitlement, civil lawsuits and human rights remedies is regrettably complicated.
It is important to understand the twists and turns of the law, particularly from the plaintiff’s perspective, as choosing the wrong forum could well spell disaster.
To avoid reading the rest of this paper, the abbreviated answer to this question is that civil claims made for aggravated damages, that is, a claim for emotional distress, will be allowed to proceed, provided that the pleading of such a claim is related to the manner of termination of employment. 1 This is in addition to the claim made for compensation for the failure to give notice at common law.
The case law to date has also held the a claim for the Bhasin breach of duty of good faith is not relevant to this argument. It may be prudent to plead "damages for the breach of duty of good faith" as opposed to "aggravated damages" in this context.
Should the claim deal with allegations of wrongdoing within the continuum of the working relationship and not on termination, 2 the civil action will likely be disallowed and the sole form of relief will be an application for workers' compensation benefits. This will be so, whether or not this application for such benefits succeeds.
A human rights claim has been protected by recent Ontario decisions. To be more precise, the human rights remedy has been allowed to proceed where the complaint has been made through the administrative process. Human rights claims when presented by civil action have been determined to be subject to possible dismissal. This will then involve a review of whether the alleged violation was an event on termination or any other exempted ground, or during the course of active employment. This issue is reviewed separately here.
Alberta 2013 Denies Right to Sue
An early review of this issue took place in a 2013 Alberta case.3
A second case in 2018 from Alberta came to the same conclusion. Allegations made of continuous workplace harassment, including conduct of sexual harassment, were not allowed to be made in a civil claim and were under the jurisdiction of the workers' compensation process. 4
Jurisdiction
Workers' compensation coverage varies from jurisdiction to jurisdiction. It is beyond the mandate of this discussion to detail the distinctions. There is no federal system. Federally regulated employees will be allowed to access their local workers' compensation plan.
In Ontario, the vast majority of workers in Ontario are covered by workers’ compensation. Roughly 75% of this workforce has this coverage. There was a review conducted in 2020 to consider expanding this population. No action has been taken to date.
Not all Alberta businesses are covered by workers’ compensation. A list of exempt industries appears here. Employers in such exempted businesses may voluntarily apply for coverage. Approximately 90% of workers in Alberta are covered by the workers’ compensation plan.
B.C. covers roughly 93% of its workers. National statistics are shown here.
Basics of WC Coverage
Two Step Test
The building blocks of a workers’ comp claim are twofold. This is common to all provincial workers’ compensation plans.
Firstly, there must be a workplace “event”, to use a non-statutory term. The definition of the term, “accident”, is significant as it departs from the real world meaning. It is defined to include intentional conduct. This definition is common to all statutes. 5
Secondly, the worker must suffer emotional harm which meets the definition in the relevant statute. Ontario and B.C. require an emotional injury recognized by the DSM. Alberta requires a defined psychological injury but does not mandate a DSM diagnosis.
Ontario, B.C. & Alberta
Ontario
For example, the Ontario Act now defines the medical test to qualify for benefits to show that there is “chronic or traumatic mental stress”. These two terms are distinct.
This Act was amended as of January 1, 2018 as follows:
13(4) Mental stress
(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment. 2017, c. 8, Sched. 33, s. 1.
Personal injury
(4.1) The worker is entitled to benefits under the insurance plan as if the mental stress were a personal injury by accident. 2017, c. 34, Sched. 45, s. 1.
“Traumatic” mental stress is more akin to the test under the pre-amendment statute, as defined in this policy document.
“Chronic” mental stress is defined in the OPM which covers workplace abuse.
Both policy documents require a DSM diagnosis. The Act itself does not mandate a DSM, but rather this requirement comes from these policy documents. 6
The two requirements then for a successful workers’ compensation application are (1) an employment event and (2) workers’ comp grade emotional distress, as proven by a DSM diagnosis.
The exception from coverage is important. This excludes emotional injuries caused by workplace decisions of the employer relating to employment, including a change in work to be performed, or working conditions, disciplinary action or termination. The latter, in particular, is important, as discussed subsequently. On this issue, the statute reads as follows:
Same, exception
(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. 2017, c. 8, Sched. 33, s. 1.
This exception is also referenced in the chronic mental stress OPM.
B.C.
The B.C. legislation is of a similar context. It also throws a wide net over all workplace “accidents”, again including intentional conduct, and similarly continues to state that payment of benefits requires a DSM diagnosis with a psychiatric opinion in support. There is a similar excepting provision.
Alberta
The Alberta statute also defines “accidents” in the same manner.
A DSM diagnosis is not specifically required. A diagnosis of a psychological injury is mandated. 7
Alberta does not have the excepting provision in its statute but the case law has come to the same conclusion.
Exclusive Jurisdiction of the Workers’ Compensation Board
All jurisdictions, given the engagement of the relevant statute, deny the right of the employee to sue his employer civilly. The sole recourse will be the administrative remedy for benefits.
The Black Hole
Hence, if the relevant statute applies, there is no other forum of relief. It is to be recalled that “accident” is not the expected meaning of “accident” but rather includes intentional conduct.
Thus, if there is a workplace event as defined here, then there is no right to sue civilly and the workers’ compensation tribunal has exclusive jurisdiction. This has been interpreted to mean that even if the compensation claim is denied on the merits, there is nonetheless no right to sue civilly. This is referred to as the "Black Hole".
This “Black Hole” issue has arisen in the context of the tribunal having jurisdiction, yet the applicant cannot prove the requisite standard of emotional distress. This is more evident in Ontario and B.C. which require a DSM diagnosis. The same issue could arise in Alberta where the medical report does not show a defined psychological illness.
One case in B.C. decided by the B.C.C.A raised this very issue. 8 The appellate court held that there was no civil right to sue as the accident took place in the workplace, even though there was no factual foundation for the workers' compensation benefits as the event was foreseeable, in these words:
It is possible that there was a lacuna in the compensation scheme created by the former version of s. 5.1. Even if that were the case, it did not permit Ms. Christianson to sue. Her claim failed because she did not prove a necessary factual element. To allow her to sue would imperil the integrity of the historic trade-off as expressed in s. 10 of the Act.
The "lacuna" was a reference to what the prior chambers judge, whose decision found the workers' compensation board decision "patently unreasonable", described as a "black hole". That is, the worker could not recover benefits, nor sue civilly. It is, of course, not merely possible, it is a certainty, given the right, or rather the wrong, facts.
A B.C. motions judge recently came to the same conclusion that once the workers' compensation regime has jurisdiction, there is no right to sue. This is so whether or not the workers' compensation claim succeeds:
I agree with the defendants that insofar as the plaintiff seeks to claim damages for personal injury, comparable to a claim in tort, arising out of and in the course of her employment, these claims would not be within the court’s jurisdiction at first instance and must either be struck or referred to WCAT for determination on its jurisdiction.
This interpretation then would mean that if WC regime has jurisdiction, the plaintiff cannot sue and perhaps may not be able to recover WC benefits. That would leave a mark. As discussed below, human rights claims are not caught by the WC Act in Ontario, when enforced by the administrative process.
Also as referenced subsequently, Ontario decisions have denied not only the right to sue for mental distress damages, but one decision, reviewed below, initially denied the right to sue for constructive dismissal. 9.
This is said to be rare, yet in many cases referenced below, this is indeed the result. Alberta and B.C. decisions do allow the termination claims, generally constructive termination cases, to proceed in civil courts in this context. 10
The Ontario statute denies the application of a WC remedy when the emotional distress relates to termination of employment or discipline.
Tribunal Decisions
1.“Entitlement” Issue - The Black Hole
A WSIAT decision in 2016 came to the conclusion that the issue on a S. 31 application was simply whether a claim for benefits could be made, not whether the application was one which would succeed.
This case considered the motion in the context of a civil action claiming emotional distress damages. The employer argued that the case was one of traumatic stress which required a sudden and acute reaction to a traumatic event to qualify for coverage. 11 The employee argued that the response was gradual and could not be covered by the Act. Nonetheless, the civil action was unable to proceed.
In a 2019 decision, the plaintiff had a commenced a civil action alleging workplace abuse and claiming damages for constructive termination, aggravated and punitive damages, damages for the breach of the OHSA, the creation of a poisoned work environment and/or the tort of harassment. The employer moved to dismiss based on the above section of the Act.
The plaintiff raised precisely this issue, that the Act removed the right to sue only where the injuries were compensable under the Act. The employer motion succeeded. All aspects of the civil claim were precluded, including the right to sue for constructive dismissal. At the time of the motion, there had been no determination of the employee's entitlement to benefits. The reconsideration motion was dismissed.
The law then is that once there is WC jurisdiction, there is no right to sue, whether or not there will be or have been WC benefits awarded. A black hole indeed.
2. Constructive Dismissal
The issue of the claim for constructive dismissal was reviewed and set aside by the Divisional Court.
The reasons of the Court, in this decision known as Morningstar, were as follows:
In my view, in both of the decisions under review, the WSIAT’s reasoning and conclusions were unreasonable. It applied the “inextricably linked” test to the facts from the applicant’s statement of claim, and determined, twice, that the facts set out by the applicant were “inextricably linked” to the workplace injury, and that therefore the applicant’s action for constructive dismissal must be barred.
[82] These determinations were unreasonable because the two decisions applied the “inextricably linked” test in a way that ignored the policy behind the legislation and wording in ss. 26, 28, and 31 of the Act that offered guidance to their interpretation. In so doing, the WSIAT necessarily disregarded essential facts in the applicant’s claim and supported its decisions on inappropriate authorities and failed to consider relevant authorities.
[83] The focus in the decisions under review on the linkage of the facts to the accident in question, rather than on the bona fides of a cause of action for constructive dismissal or on the availability of benefits under the Act, leads to logical flaws in the decisions and generates a result that flies in the face of the “historic trade-off,” and is unreasonable. Although both decisions speak in terms of “inextricable linkage” of facts to the workplace injury, this is a misnomer when the WSIAT unreasonably did not resort to the tools at hand to extricate an apparently viable claim for constructive dismissal. The linkage is only inextricable if the tools that are available to extricate it are unreasonably ignored.
[84] I conclude that no proper lines of reasoning would support the decisions under review.
An application for leave to appeal to the Court of Appeal was dismissed.
3.The Test
Initially the test to be applied was whether the “foundational facts” of the civil case are “inextricably linked to workplace harassment” (as was the allegation in this case) and hence becomes a workplace event. If so, the civil action was determined to fail the test. Further, it was then stated that the manner in which the action was pleaded was not significant. What was important was the “fundamental nature of the action” and whether it arises in respect of a work injury.
This test has since fallen from favour. The modern analysis looks to the specific causes of action in the claim and the damages so asserted to determine whether the claim is caught by the compensation statute.
As was stated in this 2022 case:
In this decision, we have not used the “inextricably linked” test. In declining to use this test, we adopt the comments in Decision No. 1197/19 at paragraph [55] in that we find that …the “inextricably linked” factual analysis confuses an identity of facts with an identity of causes of action. The worker’s rights of action with respect to damages, and other remedies, resulting from the personal injury are distinct from the rights of action with respect to the alleged breach of the employment contract.
4. The Claims are Different?
It has been noted that even where the civil proceeding seeks relief which is well beyond the purview of the WC regime, this matters not. Claims for aggravated and/or punitive damages are of no consequence once the Act has jurisdiction.
A case under the Alberta statute allowed the constructive dismissal claim to proceed and dismissed the remaining claims in a similar context. 12 The above decision was appealed and upheld. The action was dismissed, save the amended claim for constructive dismissal based on the same allegations of abuse. 13
The Alberta statute does not have the exempting section which exists in Ontario and B.C, as discussed below. The statutes of Ontario and B.C. deny the workers’ compensation application, and hence, allows a civil claim to proceed where the emotional distress claim relates to the manner of termination. To that issue the words of the Court of Appeal in Ashraf effectively come to the same end as the Ontario and B.C statutory excepting terms:
[11] The WCA is the statutory scheme with jurisdiction to address the first cause of action, but not the second. The WCA asserts no jurisdiction to compensate claims for constructive dismissal and it is not suggested that there exists a collective agreement or any statutory scheme which could assume jurisdiction to address that claim. If the judgment appealed from were allowed to stand, the appellant would be left without a forum to advance that claim, as would every other claimant for constructive dismissal who alleged that the workplace abuse leading to termination also caused stress or other psychological injury. With respect, we conclude the chambers judge erred in striking the claim as it relates to the claim for constructive dismissal.
It is submitted that this reasoning would apply to a direct or a constructive termination.
A similar result followed in a second Alberta case with respect to allegations made in an action for workplace harassment and negligence. 14
Statutory Claims
The Appeals Tribunal in Ontario confirmed that the statutory payments owing on termination are not considered to be caught by the workers' compensation regime.
Misrepresentation Plea
The Prince v Apple decision, discussed in the human rights paper, also considered a plea of misrepresentation. The claim did not distinguish a contractual argument as opposed to a tortious claim but the Tribunal accepted the theory that this plea constituted both submissions. The Tribunal found that the contract plea was allowed to proceed but the tort claim could not, as the damage claim asserted lost income, which would be covered by the Act.
This missed the point that the negligent misrepresentation plea is based on prejudicial reliance, that is the victim would not have accepted this employment without the statements being made. The lost income claim in tort is not based on income lost with this employer but rather based by other external opportunities.
This decision makes no sense, with respect.
Careful Pleading Will Save the Day
The Excepting Words
The revised Ontario Act, as does the B.C. statute, in dealing with the right to claim benefits for chronic stress and all that, provides this exception:
(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. 2017, c. 8, Sched. 33, s. 1.
Hence, no matter what the grade of the mental distress may be, it matters not where the above fact situations arise, namely:
- Decisions or actions of the employer relating to employment;
- Which include a decision to change the work to be done, the working conditions, discipline or termination.
Hence, if the claim is pleaded as “factual foundation” based on any of the above, the civil action should be allowed to stand.
If the claim pleads a decision was made to terminate employment, as a result of which aggravated damages were suffered, it should be allowed to stand.
If the claim pleads a decision was made to terminate employment, constructively, the claim should be allowed to stand. There is no distinction between direct and constructive termination in the Act.
If the claim pleads a decision was made to terminate employment, constructively and such was based on abusive behaviour, the claim should be allowed to stand.
If the claim asserts that the employer conduct was disciplinary in nature, such as a demotion, which caused the emotional harm, the claim should be allowed to stand.
This precise argument has yet to be made, but the following case in March of 2021 comes very close in examining the same section.
A senior Crown Attorney was alleged to have sexually harassed a female colleague, also a Crown. He was placed on a paid administrative leave pending an investigation in May of 2017. He soon sought medical treatment and received disability insurance benefits due to psychiatric issues. He officially ended his employment on March 1, 2018 and asserted a termination claim. He had not returned to work since May of 2017. In the civil action, he did not assert any claim for emotional distress damages prior to May of 2017. The Vice Chair denied the motion to dismiss 15 based on S. 13(5):
Furthermore, it is also clear, given the provisions of subsection 13(5) of the WSIA, that the plaintiff could not have established a claim for workers’ compensation entitlement due to the defendant employer’s actions on or after May 25, 2017 when he was suspended from working, even if he wished to do so;
The decision continues:
I have reviewed the plaintiff’s Statement of Claim in this matter. Significantly, the claim contains no assertion of liability and no request for damages against defendant in respect of any action taken by the defendant or any injuries sustained by the plaintiff as a result of his work duties, prior to May 25, 2017.
The plaintiff is therefore not making any claim for damages in his civil action that the WSIA might take away under sections 26 through 29 of the Act as he is not claiming damages in respect of injuries arising out of and in the course of employment prior to his suspension and he is not permitted to claim workers’ compensation benefits in respect of his suspension.
The moral appears to be that the drafting of the claim is important as to when it is asserted that the emotional distress damages arose and why. If the claim alleges a series of events, yes here it was a suspension, that resulted in a constructive termination, which is when the emotional distress arose, and not in the course of prior active employment, then the pathway should be clear.
However, this being said, the Act does not deal with the date when the emotional damages arose as the critical factor, as stated in the above decision, and likely so as this is how the case was pleaded. The Act, rather, deals with what caused the issues as set out above, such as a change in working conditions, discipline, or termination.
Hence, certainly, if the pleading follows the Crown Attorney case and asserts that the damage claim arose on termination, the claim should stand.
The same section has been considered not in the context of a jurisdiction issue, as above, but rather in the course of decisions denying benefits entitlement. The same reasoning should apply, however, when similar issues are raised in a jurisdiction motion.
In a second 2021 decision, several reasons were given for denying the claim but the “most persuasive” submission was that the stressor was “closely associated with the employer’s administration of the employment relationship and hence caught by the exempting provision. This was a denial decision and not one raising the issue of the right to sue:
As I have indicated above, for the most part, the worker’s work related stressors were her busy workload involving vulnerable clients, the expectation of extra-curricular committee work involving abuse of vulnerable people and bereavement, the additional work and uncertainty associated with a job change and training her replacement, and the meeting on January 25, 2018. The non-work-related stressor was the worker’s pre-existing condition. I find that the work-related stressors were closely associated with the employer’s administration of the employment relationship. The policy reflects the language limiting entitlement in s. 13(5) and provides the following examples of an employer’s decisions or actions that are part of the employment function: terminations, demotions, transfers, discipline, changes in working hours, or changes in productivity expectations.
A third 2021 decision also in the same context, denied benefits based on the same section as the conduct which gave rise to the mental stress came from the employer’s decision to change the work duties. Also further case denied benefits as the mental distress came from disciplinary conduct. One 2022 decision clearly displays the distinction between mental distress which arises from ongoing employment as opposed to distress arising from termination.
Again, the claim which alleges emotional distress due to any or all of the excepting conduct, even prior to termination, should be allowed to stand.
The B.C. decision referenced above also dealt with the same argument 16 that events relating to the dismissal itself, in this case, a constructive dismissal, should be exempted from the jurisdiction of the WC statute:
The defendants also point to Ms. Deol’s particulars of the terms of the contract that she alleges were breached. In addition to reliance upon the law firm’s duty of good faith “at and around the time of dismissal,” Ms. Deol particularizes other contractual terms that relate to her employment more generally, including the provision of a safe working environment and a workplace free of harassment. Ms. Deol’s particulars refer to conduct throughout her employment, and not when the employment contract ended (which the defendants say did not occur until Ms. Deol repudiated her contract by commencing these proceedings).
Although not clearly articulated, I understand Ms. Deol to say that these particulars are relevant to the manner of her dismissal. She disagrees that she was the one that repudiated the employment contract by bringing this claim, and she says that she merely accepted the defendant partnership’s repudiation of the employment contract.
For the purposes of this application, Ms. Deol’s material allegations of constructive dismissal, including the manner and timing of her termination, must be assumed to be true.
However, even assuming that Ms. Deol is constrained to relying on breaches of the law firm’s duty of good faith at the time of dismissal for the purposes of her claim in aggravated damages, I am satisfied that the pleadings and the particulars are sufficient to plead this claim.
The constructive dismissal in this case is alleged to have arisen from a cumulative series of acts that together are alleged to have created an intolerable workplace, evidencing an intention by the partnership to repudiate Ms. Deol’s employment contract. Particulars have been provided of these incidents.
....
Where the dismissal is alleged to have arisen in these circumstances, past acts may well constitute part of the “manner of dismissal.” In a claim of this type, it would be wrong to limit the assessment of an employer’s behaviour to the single point in time when an employee accepts the employer’s repudiation of the employment contract.
The significance of this distinction between damages which arose from the "manner of dismissal", as contrasted with the general continuum of active employment is then a pivotal one:
However, I find that para. 21 is worded so broadly that it pleads a claim in tort and personal injury rather than in contract. The implication of the pleading that Ms. Deol “suffered and continues to suffer” as a result of the “foregoing” is that Ms. Deol has ongoing personal injuries arising from the material facts pled, including not only the manner of dismissal but the defined “misconduct”, i.e. the harassment itself. I find that this pleading strays too far into a claim for personal injuries directly arising from the conduct itself, and not the manner of dismissal. In addition, to the extent that para. 21 is intended to be limited to losses arising from the manner of dismissal, it adds nothing to para. 20 of the NOCC. Accordingly, para. 21 must be struck from Ms. Deol’s NOCC.
With this clarification, I am satisfied that the claim is adequately pled in contract for constructive dismissal and that it does not fall within the exclusive jurisdiction of the WCB.
Such was also the 2021 decision of the Alberta Provincial Court in concluding that the aggravated damage claim related to the manner of dismissal and was hence allowed to stand. Much to the same effect is Dahlen v Avenue Living Communities Ltd.
It must be recalled that aggravated damages in the context of an employment claim originate from a breach of the obligation of good faith and fair dealing at the time of termination. This latter phrase has been given a broad interpretation. Should this be any different in the context of the interpretation of this statute? Perhaps so.
There can be such damages considered as part of a tort claim which found its origin in workplace conduct. Consider the above section when drafting the claim.
Bhasin & Other Escape Mechanisms
Another exit door from this chaos, of course, is to avoid the pleading of aggravated damages. This becomes the vulnerability of the claim. There can be a claim for punitive damages without consequence.
The Appeals Tribunal in its November 2022 decision came to the conclusion that a Bhasin claim was not caught by the workers' compensation plan, however, in the context of this duty arising at the time of termination. The decision states that Bhasin damages does not require an "injury":
The Supreme Court in Bhasin recognizes that the employment relationship is one in which a duty of good faith has traditionally been found to exist.
[172] Accordingly, we note that the duty of good faith and fair dealing is claimed to have arisen from the employment relationship. Although the compensable claim and impairment are closely tied to the allegation of the breach, the action does not require an injury. Rather, the duty arises from the nature of the relationship.
[173] In these circumstances, we find the mere fact that the respondent alleges that the cause of the breach (the termination) is the compensable accident and sequelae, does not negate the applicant’s obligation to act in good faith in the context of the employment relationship which is grounded in contract, not in tort.
[174] For these reasons, we find that the respondent is not statute barred from pursuing an action for breach of duty of good faith and fair dealing, referenced as “obligation of good faith and fair dealing” in the amended statement of claim, in relation to the termination.
Care should be taken in the plea of a Bhasin claim as this decision centered on there being no "injury" suggested in this submission.
Also, it is likely that the plaintiff can discontinue the claim for aggravated damages when confronted with the WSIAT motion to seek exclusive jurisdiction. There may be some costs consequences, but this would likely be modest.
The Consequences of a Successful Motion to Dismiss Civil Claim
Obviously the civil action is gone.
The employee may not qualify for WC grade mental distress and receive nothing. This may be the case even with a DSM diagnosis. It is certainly the case without one. 17 It is that black hole again.
The employee may qualify for WC mental distress and receive benefits for the duration of her illness. Given her emotional status at the time of the commencement of the action, this may well be for a brief time period. The benefit sum in Ontario is 85% of net earnings and medical care expenses.
There are then issues of return to work under the Act, which is an entirely different question.
In essence, the worker has lost a promising wrongful dismissal claim of 18 to 24 months potential, ESA payments of 28 weeks and an aggravated damage claim, perhaps punitive damages, for the chance of a few weeks or months of workers’ compensation benefits plus a possible return to work to a job she wanted out of at the beginning, plus all the legal turmoil. Without the DSM, she would recover no benefits at all and not be able to sue. Not good.
There will be the ability to pursue a human rights claim due to abuse in the currency of the employment relationship provided that it has been commenced by the administrative process, and/or arose on termination.
If the human rights complaint did arise in the continuum of employment and was raised in a civil action, the claim may be made for only injured feelings and not lost income.
It would appear that careful strategic planning and pleading will avoid this conundrum.