Divisional Court overturns ruling that Workplace Safety and Insurance Act prohibits constructive dismissal claims – Employment and HR

In 2020, the Workplace Safety and Insurance Appeals Tribunal (TSAPAAT) confirmed that when a constructive dismissal claim is based on harm suffered as a result of harassment and bullying at work, the claim falls under subsection 13 (4) of the
Workplace Safety and Insurance Act (WSIA), which entitles the claimant to benefits under the chronic and traumatic stress insurance plan. Decision n ° 1227/19, 2019 ONWSIAT 2324 (Decision n ° 1227/19). Therefore, WSIAT has ruled that the right to bring a civil action for constructive dismissal against an employer for the same conduct and to claim related damages is prohibited by law.

Recently, however, the Ontario Divisional Court in Morningstar v. TASPAAT, 2021 ONSC 5576
(The morning star) review decision No 1227/19 and
Decision n ° 1227 / 19R, who reconsidered and upheld the original decision. In
The morning star, the court found that the WSIAT unreasonably barred the plaintiff’s action for constructive dismissal and related damages, and quashed parts of the original and the review of the WSIAT decisions that rejected these claims.

Background

After filing an application with the Human Rights Tribunal of Ontario (HRTO) alleging discrimination, bullying and harassment in the workplace based on gender and disability, the employee resigned alleging that ‘she had been fired in disguise. She then brought a civil action for punitive, aggravated and / or moral damages for the breach by the employer of the Occupational Health and Safety Act due to “intimidation, harassment and the creation of a poisoned work environment and / or the crime of harassment”. The employee’s HRTO claim was denied on the grounds that the civil action raised essentially the same allegations and sought damages for the same violations.¹

Original decision of TASPAAT (Decision n ° 1227/19)

The employer filed a “right to sue” application under s. 31 of the WSIA seeking a judgment declaring that the employee’s right to bring a civil action against him was prohibited by s. 13 (4) of the WSIA, which, as noted above, provides entitlement to workers’ compensation benefits for chronic stress and traumatic stress. In
Decision n ° 1227/19, the TASPAAT ruled in favor of the employer.

Review (Decision n ° 1227 / 19R)

The employee requested a reconsideration of Decision No 1227/19. The resulting decision, Decision No. 1227 / 19R confirmed the original conclusion of TASPAAT.

A judicial review

The employee sought judicial review in the Ontario Divisional Court of both the original WSIB decision and its reconsideration, conceding that the WSIA had properly excluded her injury claims, but arguing that WSIAT had to wrongly excluded his claim for constructive dismissal.

In The morning star, the court sided with the employee, ruling that WSIAT had unreasonably barred her constructive dismissal action and sought aggravated moral and punitive damages. The court annulled parts of the two
Decision n ° 1227/19 and Decision n ° 1227 / 19R which prevented them from proceeding.

Although the court recognized the “historic compromise” that forms the basis of the legal prohibition in the WSIA (for workers, a simplified workers’ compensation scheme, but the absence of lawsuits for employers), he noted that while the WSIA prohibits a personal injury action, it was unreasonable to prohibit a constructive dismissal action only because the facts relating thereto incidentally support a personal injury action. To do so would be to ignore Canadian law, which allows different causes of action based on the same facts to be advanced.

The court also emphasized that the purpose of the general wording of the restriction is to identify personal injury claims disguised as other claims and to bar them from proceeding; the intention of the restriction is not to prohibit a authenticnon-bodily injury claim, such as a constructive dismissal claim, for which the WSIA offers no compensation, simply because the facts relating to it support a personal injury claim. The court ruled that the employee’s constructive dismissal action and her claims for aggravated, moral and punitive damages should be allowed.

Net result for employers

Employers who wish to assert that an employee’s claim is time barred under the WSIA are encouraged to focus on the nature of the damage and the remedy sought. If the damages claimed do not relate to bodily injury and the remedy cannot be granted under the WSIA, it may be difficult for employers to successfully obtain a s. 31 requests to obtain a declaration of limitation. In view of the court’s decision
The morning star, this difficulty may exist with respect to a civil action for constructive dismissal and aggravated, moral and punitive damages arising from allegations that an employee has been intimidated and harassed by colleagues and / or managers on the premises. of work. That could change, however, if
The morning star successfully appealed; we will report on any development that may arise. In the meantime, employers are encouraged to seek the assistance of an experienced employment counselor in determining whether a decision under s. 31 request for a declaration that a claim is time barred under the WSIA may be made.

Footnote

1 See: Morningstar v. Hospitality Fallsview Holding Inc. (o / a Hilton Fallsview), 2019 HRTO 1222.

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