COURT FILE NO.: 06-CV-313059 PD1

DIVISIONAL COURT FILE NO.: 603/07

DATE: 20080205

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Sultan Nasser v. ABC Group Inc.

BEFORE: Mr. Justice Ferrier

COUNSEL: Brian Illion for the moving party ABC Group Inc. John Carruthers for the plaintiff/respondent Sultan Nasser

HEARD: January 29, 2008

E N D O R S E M E N T

[1] The defendant/moving party seeks leave to appeal from the interlocutory order of Justice Day dated December 3, 2007. The motion heard by Justice Day was brought by the defendant seeking an order staying this action pending a determination by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) as to whether the Workplace Safety and Insurance Act, 1997, bars the plaintiff's right of action pursuant to s.28 of that Act.

[2] In the action, the plaintiff alleges that he was constructively dismissed. When the defendant's CEO "violently lost his temper and in an angry, loud and demeaning manner shouted at the plaintiff."

[3] The plaintiff further alleges that "his decision to resign was motivated by his physician's comments on February 13, 2006" the date of the alleged constructive dismissal.

[4] The plaintiff also alleges in his statement of claim that following the February 13 incident, the plaintiff was very distressed and distraught. The plaintiff alleges that his physician ordered additional medical tests and ordered the plaintiff to be off for four weeks. In addition the plaintiff alleges that his resignation was "forced by the stress related to Mr. Schmidt's abusive conduct".

[5] The relevant passages from the reasons for judgment of Justice Day on the motion are as follows:

[30] The third and final ground of the plaintiff respondent focuses on whether or not section 26(2) of the Act bars the plaintiff's claim for damages for constructive dismissal.

[31] The plaintiff seeks damages framed in breach of contract and wrongful dismissal. In this the plaintiff alleges a breach by the defendant of its obligation to treat him with civility, dignity and respect. The plaintiff pleads that this was an implied term of his contract. The defendant says that there was no such implied term and no such implied term exists at law.

[32] I refer to Lloyd v. Imperial Parking Ltd. in a 1996 decision of the Alberta Court of Queen's Bench (92 A.R. 190, 46 Alta. L.R. (3rd) (220); 1996 10543 (AB KB), [1997] 3 W.W.R. 697). At para.41, Justice Sandeman said:

41. A fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency, respect, and dignity. The standard that has to be adhered to by the employer is dependent upon the particular work environment. This appears to be part of the trend to establish a duty upon an employer to treat employees 'reasonably' in all aspects of the labour process …

[33] I have no hesitation in concluding that there is a fundamental implied term of any employment contract that the employer will treat the employee with civility, decency, respect and dignity.

Nature of the Relief Sought and Finding

[34] Focus has been placed on specific language within the Act.

[35] S. 2(1)(a) provides that 'an accident includes a willful and intentional act, not being the act of the worker.'

The alleged act by the president of the defendant corporation would thus far seem to be included.

[36] S. 13(1) provides that '[A] worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to the benefits under the insurance plan.' I fasten on the words 'personal injury'. An analysis of the plaintiff's claim indicates that he is not seeking anything by way of personal injury. He claims damages for breach of contract, including loss of salary, loss of employment, fringe and other benefits arising from breach of contract. All of those claims are legitimately for a breach of contract. None of them disguise the tort relief envisaged by the Act. The cases are clear that wrongful dismissal actions can lie outside the Act as between worker and employer.

[37] Reference has been made to s. 13(4) and (5) dealing with mental stress. I note that the plaintiff makes no claim for compensation owing to mental stress. The only claims made by the plaintiff in tort are for Wallace damages. Wallace damages are punitive in nature which have no basis in general tort law independent of a wrongful dismissal. Wallace damages can in no way be contemplated as being included in the jurisdiction of the WSIAT.

[6] There is ample authority for the proposition that a claim for wrongful dismissal is one for which there is no redress under the WSIAT. See, for example, Decision 237/03, [2003] ONWSIAT 451.

[7] I agree with the finding of the learned motions judge that the plaintiff's claim here is clearly one of damages for breach of contract. The plaintiff does not seek relief for personal injury damages.

[8] Accordingly, I am not of the view that there is good reason to doubt the correctness of the order below. Furthermore, there are not conflicting decisions on the point.

[9] Accordingly, neither branch of r.62.02(4) has been satisfied.

[10] The motion for leave is dismissed, with costs fixed at $3,000 payable forthwith.

Ferrier J.

Released: February 5, 2008

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