An arbitrator has ruled that an employee can seek damages for breaches of a collective agreement and duty of care, despite the employer’s argument that such claims fall exclusively under the jurisdiction of Ontario’s Workplace Safety and Insurance Board (WSIB).
The decision clarifies that damages related to management’s actions or inactions, such as failing to address harassment and maintain a safe workplace, can proceed if they fall outside the WSIB’s scope, as outlined under the employment function exclusion in the Workplace Safety and Insurance Act.
Background
Arbitrator Daniel A. Harris of the Grievance Settlement Board (GSB) determined he holds jurisdiction to award monetary damages to a grievor for workplace harassment that falls under the “employment function” exclusion of the Workplace Safety and Insurance Act (WSIA).
The ruling clarifies that while the grievor’s initial workplace injuries triggered WSIB benefits, ongoing harassment and a poisoned work environment created by the employer’s inaction remain outside WSIB coverage and may warrant damages.
The matter, brought forward by the Ontario Public Service Employees Union on behalf of R.P., involved long-standing disputes with the Ministry of the Solicitor General. The union alleged that R.P. endured workplace harassment and management’s failure to provide “a workplace free from harassment and threats of violence,” as previously declared in a Nov. 22, 2021 decision. At issue in this most recent proceeding was whether the GSB could award monetary remedies for that harassment, or if such compensation was barred by WSIA’s exclusive jurisdiction over workplace injuries.
The union argued that while WSIA provides compensation for injuries “arising out of and in the course of employment,” it expressly does not cover mental stress caused by “decisions or actions of the worker’s employer relating to the worker’s employment.” That exclusion appears in WSIA section 13(5). The union said that because the harassment and poisoned environment at Maplehurst Correctional Complex sprang from management decisions and inaction, rather than from a specific incident within WSIA’s scope, the GSB maintained jurisdiction over potential damages.
Employer’s position
The employer took the position that once WSIB compensates any portion of a mental injury related to the workplace, no other tribunal has the authority to award damages. The employer argued that the GSB should find itself barred from awarding damages because R.P. had received WSIB benefits for traumatic mental stress linked to specific incidents of physical and verbal assault.
Those recognized traumatic events occurred on May 7, 2010, and Jan. 17, 2014. However, the employer maintained that all subsequent harassment and related harm should be considered part of the same compensable stream.
Arbitrator’s ruling
Arbitrator Harris disagreed. He drew a clear distinction between “accident-related” injuries compensable under WSIA and harassment or management failures that fall outside its reach. While R.P. was compensated for the traumatic incidents, the WSIB had not extended benefits for the ongoing harassment that followed, even though it acknowledged a psychological reaction to “physical and verbal assault and ongoing harassment.”
According to the decision, WSIB operational policy excludes injuries stemming from employment-related decisions, such as discipline or changes to working conditions, from mental stress coverage. The arbitrator quoted WSIA section 13(5), noting it “specifically excludes from WSIB coverage mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment.” The ruling states, “It is my view that I have the jurisdiction to award such damages as a roster mediator-arbitrator of the Ontario Grievance Settlement Board.”
The decision delves deeply into past jurisprudence. Arbitrator Harris reviewed cases like OPSEU (Monk) and others where boards considered whether certain workplace injuries, including harassment, were compensable under WSIA. He drew on the principle articulated in earlier rulings that while the WSIA generally bars parallel recovery for workplace accidents, it does not preclude compensation for breaches of the collective agreement that fall squarely outside WSIA coverage.
Central to the arbitrator’s reasoning was the concept of “evidentiary daylight,” drawn from cases such as Adams and Foley. Under that reasoning, the adjudicator must determine if the claim “stands separate and apart” from compensable workplace injuries governed by WSIA. The arbitrator wrote: “There must be evidentiary daylight between the monetary claim and the broad remedial jurisdiction assumed by the WSIA. I do not see that daylight in this case,” quoting earlier rulings. Here, however, he concluded that this evidentiary daylight does exist.
‘Indifference’ by management
In R.P.’s case, the initial traumatic events were recognized as a workplace injury. Yet the WSIB only compensated the grievor for the acute incidents. The ongoing harassment, which the arbitrator called “indifference” by management, was not included. The decision states: “The WSIB did not grant entitlement for the ongoing harassment and bullying … The WSIB excluded the bullying and harassment … by virtue of s.13(5).” As a result, “the damages sought are not within the purview of the WSIB.”
Arbitrator Harris stressed that the harassment here did not rise to the level of a new “accident” under WSIA. Instead, it arose from how the employer managed — or failed to manage — the workplace after the traumatic incidents. The “failure to respond appropriately in its exercise of management functions,” he wrote, placed these claims within the exception carved out by section 13(5).
He noted that other forums have had to undertake a similar parsing of what is or is not compensable under WSIA. Many cases found that once mental stress claims resulted from “egregious” actions constituting a workplace accident, WSIA would cover them. But if the stress is caused by ordinary but harmful management decisions, WSIB coverage does not apply.
Citing Morningstar v. WSIAT and other decisions, the arbitrator emphasized that failing to consider the distinction between WSIA compensable events and separate contractual breaches could lead to “tunnel vision.” Such an approach might wrongly bar an employee from seeking redress for employment-function-related harassment. The ruling noted: “If there is no remedy under the WSIA, then disregarding the terms of employment is a separate and distinct matter.”
Recourse where WSIB does not apply
The decision emphasizes the GSB’s role in ensuring that employees have recourse where WSIA does not apply. If WSIB coverage is not available for harassment tied to management decisions, then employees must have another avenue for remedy. Without it, “to hold otherwise,” Harris wrote, “would be to encourage employers to make a worker’s life so miserable in the workplace that they are made to suffer chronic stress and be driven to resign without any fear of legal reprisal.”
Arbitrator Harris concludes that he remains seized of the matter to consider the nature and quantum of damages for the breaches found. He states that the parties should be prepared to address possible damages related to the grievor’s departure from work, “which is akin to constructive dismissal,” as well as whether aggravated, moral, and punitive damages may be warranted.
In the final analysis, the GSB’s ruling affirms its jurisdiction to grant monetary relief in situations where the WSIA’s employment function bar excludes coverage. “The jurisdiction to award monetary damages in these matters is not that of the Workers’ Safety and Insurance Board; it is the jurisdiction of the Ontario Grievance Settlement Board,” the decision concludes.
For more information, see Ontario Public Service Employees Union (Plouffe) v Ontario (Solicitor General), 2024 CanLII 122873 (ON GSB).
