There remains a further possible argument that the workers’ compensation statutes may deprive the relevant human rights commission of jurisdiction to award a damage claim for such a violation, given appropriate coverage.

This being said, human rights remedies are not likely precluded where workers’ compensation is in place.

Wording of Ontario Legislation

Section 31 of the Ontario statute states as follows: (highlighting added)

(1) A party to an action or an insurer from whom statutory accident benefits are claimed under section 268 of the Insurance Act 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 sole case dealing with this issue is a WSIA Appeals Tribunal decision which interpreted its statute to define “action” to be only a civil claim and not a human rights complaint. There are no contrary decisions. It would appear irrational to base such an issue on the procedural section. The substantive section clearly states that it applies to all remedies possible: Section 26 of the Act takes away the right to sue, given its jurisdiction:

26(1) ….. (2) Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker….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 ……while in the employment of the employer.

This being said, it remains to be seen what the law will be when an “action” is indeed commenced to enforce a human rights remedy, as Ontario law permits. The reality is that the amendments to the legislation were not well thought out and that further revisions are required. This case aside, there does remain some risk that these above decisions will have a serious negative impact on the jurisdiction of the human rights body to award compensatory damages and lost income sums where the claim arises from workplace misconduct.

Generally, human rights legislation is considered quasi-constitutional and as such, supersedes any conflicting statute, unless specifically stated to the contrary in the human rights enabling legislation. ¹

Apart from the quasi-constitutional status argument, the human rights process does deal with broader issues from a public interest perspective and includes other forms of non-monetary relief, including reinstatement, which is not available by a workers’ compensation claim. (See the decision of the HRTO in which the applicant was in receipt of WSIB benefits since her dismissal and was awarded $75,000 in compensatory damages. This issue was not raised.)

Supreme Court Qualifier

This would lead to the presumption of some comfort that the human rights regime was safe from erosion of its powers due to the workers’ compensation remedy. This may, however, not be a correct conclusion.

An action was commenced in Quebec by civil action seeking a remedy allowed by the Quebec Charter of Human Rights and Freedoms for exemplary damages, moral damages, loss of health and for the inability to return to work, all based on a sexual assault and an allegation that the employer had failed to provide a safe work environment. The plaintiff had also received compensation under the Quebec workers’ compensation statute for an “employment injury”. Under that process, she had received 3 years of wage replacement benefits and compensatory damages for her injury of $7,200.

The Charter claim was denied ²  due to the application for workers’ compensation benefits, notwithstanding the quasi-constitutional status of the Charter remedy. The court did note that an arbitrator under a collective agreement would have been similarly prevented from making a damage award, but not “other remedial measures such as reinstatement or reassignment”. The decision did not state that the WC application was mandated to come first, but rather it did come first to hearing. The civil remedy under the Quebec Charter had been commenced first. The SCC did specifically state that the issue as to whether a sexual harassment complaint and harassment in the workplace could be brought before the WC regime was not before the court. The majority stated as follows, on this issue:³

Before proceeding further, however, it must be noted that this Court does not have to decide the issue of whether the AIAOD applies to sexual harassment and harassment in the workplace. The Bureau de révision paritaire decided on February 9, 1989 that the facts relied on by the appellant constituted an employment injury. On appeal, only McCarthy J.A. briefly considered this issue, stating that the facts alleged by the appellant, if true, would indeed establish the existence of an employment injury. In this Court, the parties have not questioned the validity of the Bureau de révision paritaire's decision. I will therefore assume that sexual harassment and harassment in the workplace may be the basis for a claim to the CSST under the AIAOD.

The Quebec legislative scheme for WC benefits parallels that of Ontario and B.C. with the same exclusive regime concept for workplace injuries. The Charter provides also the right to compensation by civil action for a human rights violation, as the SCC decided in this instance, in reference to this section of the Charter:

49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.

The Court noted that a Charter remedy, as in this instance, could be brought before the Quebec human rights administrative tribunal or lead to a civil case, as the plaintiff chose in this case. For this reason, the claim was characterized as one of "civil liability". The Court continued to state that there is no remedy for such a claim given the exclusive jurisdiction of the workers' compensation regime:

I am therefore of the view that s. 438 has the effect of validly barring the victim of an employment injury from bringing an action for damages under the Charter. By making this exclusion, the AIAOD clearly does not violate any of the rights guaranteed in ss. 1 to 38 of the Charter. Moreover, victims of employment injuries are not denied all forms of monetary compensation. Rather, they are subjected to a special scheme, which offers a number of advantages but which allows them to obtain only partial, fixed‑sum compensation. In this sense, and although the point is not determinative, it is worth noting that this Court has already held that a similar ban on civil liability actions by victims of work accidents did not violate s. 15 of the Canadian Charter of Rights and Freedoms (Reference re Workers’ Compensation Act, 1983 (Nfld.), 1989 CanLII 86 (SCC), [1989] 1 S.C.R. 922).

There was a secondary issue raised by the employer that, if the plaintiff could seek a remedy beyond the WC claim, that it must be by grievance as the employee was a member of a collective agreement. This was considered a moot point, given the above conclusion, but the Court offered these comments, nonetheless, suggesting that the arbitrator could still provide additional remedies:

In view of the conclusion I have reached regarding the availability of a civil liability action in the present case, it is not necessary for me to consider the scope of the grievance arbitrator's jurisdiction in any depth. By way of cross‑appeal, the respondents argued that if the action based on the Charter was not barred, it had to be decided by the grievance arbitrator. To dispose of this appeal and of the cross‑appeal, it is sufficient to note that the ordinary courts could not decide the civil liability action based on the events that made compensation payable under the AIAOD. I shall therefore refrain from determining whether a grievance could have been filed in the instant case. If that had been the case, however, it is understood that the arbitrator could not have awarded damages for the prejudice suffered as a result of the employment injury. The exclusion of a civil liability action also applies to the grievance arbitrator. This being said, it is not inconceivable that an arbitrator dealing with such a grievance in these circumstances could have ordered other remedial measures, such as reinstatement or reassignment, if the collective agreement so allowed.

This conclusion, if applied to a human rights statute, would allow the tribunal to still offer comparable specific remedies or public interest awards.

It is difficult to contemplate that the human rights remedy may be dramatically undone for those employed in an industrial work environment or otherwise covered by worker’s compensation legislation by a judicial or other reworking of workers’ compensation remedies, but clearly the argument remains, given the Supreme Court decision above. ⁴

The success of this argument would mean that give the relevance of a workers’ compensation scheme the tribunal would be deprived of significant jurisdiction, undoubtedly a remarkable conclusion. ⁵

Should this be so, the victim employee who has not brought a workers’ compensation claim on a timely basis may well find herself without a remedy. ⁶