GSB# 2002-2124, 2002-3017

UNION# 2002-0119-0043, 2002-0119-0044

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lariviere)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Nimal V. Dissanayake

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Ferina Murji Counsel Management Board Secretariat

HEARING

June 23 and August 3, 2005.

Interim Decision

On February 24, 2004 the Board commenced a hearing into four grievances filed by Ms. Marlene Lariviere (“the grievor”), which may be briefly described as follows:

(1) GSB File no.: 2002-2124

a health and safety grievance alleging a violation of article 9.

(2) GSB File no: 2002-3017

a grievance alleging a violation of the Occupational Health and Safety Act.

(3) GSB File no: 2002-2125

alleging failure to accommodate the grievor’s disability contrary to the collective agreement and the Human Rights Code.

(4) GSB File 2002-2126

a grievance alleging a violation of article 2 - management rights.

The union led its evidence over a number of days and closed its case. Following the opening statement by counsel for the employer, by letter dated May 13, 2005 the union withdrew grievances (3) and (4) listed above, on “a without prejudice and without precedent” basis. That left outstanding the two “health and safety” grievances listed above as (1) and (2).

During the employer’s opening statement, counsel had taken the position that the Board lacked jurisdiction to award any monetary compensation to the grievor in the event one or both of her “health and safety” grievances were successful. It was her position that an employee’s right to be compensated for a workplace injury fell within the exclusive jurisdiction of the Workplace Safety and Insurance Act.(“WSIA”) The parties agreed to put that legal issue to the Board by way of a motion and obtain a ruling. The union agreed that if the Board upheld the employer’s motion, it would withdraw the two remaining grievances as well. This decision pertains to that particular motion.

The union gave notice that in the health and safety grievances, it would be seeking, in addition to a declaration of violation, compensation for all loss of income the grievor suffered from the date of injury (December 13, 2001)”into the future”. In addition, it would be seeking substantial damages for pain and suffering/mental anguish the grievor suffered and continues to suffer as a result of the injury. The union undertook that it would not seek punitive or aggravated damages.

It is common ground that after the grievor went off work following her injury, she applied for and received benefits under the WSIA. As a Schedule II employer, the employer was required to, and did, pay 100 percent of the grievor’s regular wages for the first 65 eight hour shifts she missed, and 85 percent of regular wages thereafter. It is also not disputed that from June 14, 2002 the grievor received LTIP benefits, which supplemented the WSIA benefits.

It is the employer’s position that the combined payments received by the grievor under the WSIA and the collective agreement exceeded the wages she would have earned had she been not injured. The union stated that it was not in a position to agree with that assertion. In any event, it was apparent that this dispute as to whether the grievor in fact suffered loss of income need not be decided at this time, because it was the employer’s position that even if the grievor had actually suffered loss of income, the Board had no jurisdiction to award any monetary compensation, because those losses resulted from a compensable workplace injury. Indeed, the Employer’s position was that the Board lacked jurisdiction to award any monetary compensation whatsoever with respect to a compensable workplace injury, including damages for pain and suffering/mental anguish. The parties agreed that the Board should decide the legal issue of jurisdiction to award compensation. The union acknowledged that if it turns out that the grievor did not suffer loss of income as the employer claims, she may not be entitled to any compensation.

Counsel for the employer submits that the WSIA established a comprehensive and exclusive statutory scheme to deal with the monetary entitlement of employees injured at work. Under that Act the Workplace Safety and Insurance Board (“the WSIB”) has exclusive jurisdiction to award compensation to injured workers. Apart from the LTIP provisions, the benefit of which the grievor had received, the collective agreement does not contain any provision whereby the parties had negotiated for specific entitlements for injured workers. It was her submission that an explicit and clear provision in the collective agreement was required before the Board can assume jurisdiction to award monetary compensation with regard to a workplace injury.

The two grievances before the Board are based on article 9.1 of the collective agreement which states:

9.1 the Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall cooperate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of its employees.

The following provisions of the WSIA were drawn to my attention:

PART 1 - INTERPRETATION

1. Purpose - The purpose of this Act is to accomplish the following in a financially responsible and accountable manner.

2. To promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases.

3. To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease.

4. To facilitate the re-entry into the labour market of workers and spouses and same sex partners for deceased workers.

5. To provide compensation and other benefits to workers and to the survivors of deceased workers.

6. (1) Definitions - in this Act,

“accident” includes,

(a) a willful and intentional act, not being that act of the worker,

(b) a chance event occasioned by a physical or natural cause, and

(c) disablement arising out of and in the course of employment.

13. (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.

(4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress.

(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions 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 his employment.

Rights of Action

26. (1) No action for benefits - No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board.

(2) Benefits in lieu of rights of action - Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, same-sex partner, child or dependant has or 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 or an occupational disease contracted by the worker while in the employment of the employer.

118(1) Jurisdiction - the Board has exclusive jurisdiction to examine hear and decide all matters and questions arising under this Act, except where this Act provides otherwise.

(2) Same - Without limiting the generality of subsection (1), the Board has exclusive jurisdiction to determine the following matters:

3. Whether personal injury or death has been caused by an accident.

4. Whether an accident arose out of and in the course of an employment by a Schedule 1 or 2 employer ....

5. Whether loss of earnings has resulted from an injury.

6. Whether permanent impairment has resulted from an injury, and the degree of impairment.

7. The amount of a person’s average earnings and net average earnings.

The union submitted numerous prior Board decisions to demonstrate that the Board has consistently taken a “make-whole” approach to remedy and adopted the fundamental principle that “where there is a violation of the collective agreement there must be a remedy”. It is not necessary to review those decisions since the employer in this case does not dispute that as a general matter that is the Board’s approach. Its position is that in the particular circumstances where the source of the compensation sought is a compensable workplace injury, the WSIA limits the remedial jurisdiction the Board would normally have.

This issue has come before the Board on previous occasions. In Re Lister, 340/89 (Samuels), the grievor had been sexually assaulted by a resident at the workplace. The grievor claimed and received benefits under the Worker’s Compensation Act, the predecessor to the present WSIA. In addition, she also grieved alleging that the employer had contravened article 18.1 of the collective agreement, (predecessor to the current article 9.1). By way of redress, she claimed inter alia, compensation for her financial losses, as well as damages for physical and mental distress. The employer relied on S. 14 of the Workers’ Compensation Act, (the predecessor to the present S. 26(2) of the WSIA) in objecting to the Board’s jurisdiction to grant the requested remedy. That section reads:

s.14The provisions of this Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker or members of his family are or may be entitled against the employer of such work, or any executive officer thereof, for or by reason of any accident happening to him or any industrial disease contracted by him on or after the 1st day of January, 1915, while in the employment of such employer, and no action lies in respect thereof.

The Board noted that “this section says that the compensation scheme provided in the Act is “in lieu of all rights and rights of action, statutory or otherwise, to which a worker ... may be entitled against the employer ... by reasons of any accident happening to him”. The Board held that while the grievor could pursue a non-monetary claim under article 18.1, her claim for damages was precluded by S. 14.

The Board’s focus was on the source of the right to damages. If the source was a compensable injury, i.e. an “accident” as defined by the Act, the injured worker had no right to pursue damages outside the statutory scheme. At p. 10 the Board concluded:

Section 14 is concerned with the source of the right to damages, not the way in which the damages are calculated. If the “right” to damages against the employer is “by reason of any accident happening to him ... while in the employment of such employer”, such rights, statutory or otherwise, have been replaced by the legislative compensation scheme.

The Board in Re Rigglesworth, 637/90 (Fisher) took a different view. There the grievance alleged that the employer had failed to provide the grievor with a safe working environment. The grievor sought compensation for past and future losses in wages, and damages for mental stress and physical hardship. The employer raised a preliminary objection that the subject matter of the grievance was solely within the jurisdiction of the WCB. The majority of the Board in Re Rigglesworth was of the opinion that the Board in Re Lister, had misinterpreted the decision of the Workers Compensation Appeals Tribunal in Welland County General Hospital and O.N.A., (1987) 5 WCAT Reporter 97, as well as S. 14 of the Workers Compensation Act. It was of the opinion that article 18.1 of the collective agreement was a benefit negotiated by the parties over and above the rights under the Workers Compensation Act, and would cover a claim for the difference between what the employee would get from the WCB and his pre-injury wages. Thus, the Board held that, an employee could pursue additional damages by grieving under article 18.1 with regard to a compensable injury under the Act.

The Board in subsequent decisions has had occasion to consider the apparent conflict between the Re Lister and Re Rigglesworth decisions. See, Re Fleming, 461/95 (Knoff); Re Johnston 1225/91 (Tacon); Re Thompson, 1612/92 (Stewart) Rather than review each of these decisions I refer to such review done by Vice-Chair Abramsky in Re Smith/Bergounhon, 1598/96. From that case law the following emerges. The subsequent case law limits the rationale in Re Lister, so that the GSB’S jurisdiction is ousted only where the compensation sought is with respect to an injury which is compensable under the Workers Compensation Act, i.e. where the grievor had been awarded benefits under that Act. Also the Board appears to be of the consistent view that non-monetary remedies may be sought before the GSB even with regard to a injury which is compensable under the WCA. The difference of opinion is as to whether an employee may, through a grievance, seek additional compensation before the GSB with regard to a compensable injury. Re Lister, Re Fleming, Re Johnston and Re Thomson support the position that an employee may not do so. Re Rigglesworth appears to be the lone decision which would entertain such a grievance.

It must be remembered that the above noted decisions were made under S. 14 of the predecessor of the present legislation, the WSIA. The instant grievance is concerned with s. 26(2) of the WSIA. The only decision of the GSB made under the new WSIA referred to was Re Gibbon, 0687/00 (Kirkwood). There the grievor, a female correctional officer, had been attacked by some inmates. She made a claim for benefits under the WSIA, and also filed a grievance claiming that the employer had failed to make reasonable provisions for her safety. Her WSIA claim was approved and she was paid full loss of earnings benefits from April 5, 2000 to May 1, 2002, when she commenced receiving maternity benefits from Employment Insurance following the adoption of a child. In her grievance, in addition to a variety of non-monetary remedies, the grievor sought (1) to “be made whole, which includes full compensation from the date of accident until she returns to work, including service, wages, benefits etc. including damages for past and future losses from her personal business”; (2) $ 30,000.00 for damages for pain and suffering; (3) $10,000.00 as punitive damages. The employer made a preliminary motion, which included an argument that the GSB lacked jurisdiction to award any monetary compensation. Reliance was placed on Re Lister, and the subsequent decisions that followed it.

The essence of the union’s argument in Re Gibbon is captured in the following excerpt at pp. 5-6:

Union’s counsel submitted that the issues placed before the Board by the employer do not go to the issue of jurisdiction, but arise from the scope of the remedies which cannot be determined without hearing the evidence, determining the damages, and apportioning damages which are compensable under WSIA, and those which fall under the collective agreement.

Union counsel submitted that the union recognizes that WSIA is a mandatory statutory insurance plan, which provides benefits to employees who are injured in the workplace, and in return for participation in the insurance scheme, employees give up some of their rights to compensation for injuries. The union acknowledges that the effect of section 26(1) of WSIA is to prevent employees from seeking benefits compensable under the Act in any other forum, and 26(2) provides those benefits arising “for or by reason of an accident happening to a worker ... while in the employment of the Employer”, in lieu of any action, statutory or otherwise. Union counsel submitted that the grievor is not seeking an Order from this Board to pay out benefits to which she is entitled under WSIA.

Union counsel submitted that the accident suffered by Ms. Gibbon, is evidence of failure by the employer to live up to its contractual obligations under the agreement. Union counsel submitted that the subject matter of the grievance is not solely the accident or compensation for the accident or attack, but is broader and arises from the breaches of the collective agreement.

Union counsel submitted that Ms. Gibbon’s claim for damages is not limited to her damages arising out of the attack, but include damages arising out of the employer’s response after the attack, and to the employer’s decisions which affected her working conditions, which are outside the scope of WSIA, such as requiring her to stay on the job to move young persons into cells due to low staffing levels, and the employer’s requirement that she attend debriefing sessions in the workplace, over a two week period. The union submitted that the remedies for the employer’s actions after the assault, are not compensable items under WSIA, but are remedies flowing from breaches under the collective agreement.

Union counsel distinguished between damages for sustained or post traumatic stress arising directly out of the attack, which are not compensable under WSIA, and acute reaction to the traumatic event, which would be a compensable under WSIA. Union counsel submitted that as damages for stress relating to the employer’s decisions or actions relating to its handling of the grievor or the young offenders after the traumatic attack are not compensable under WSIA, and she submitted these damages are within the jurisdiction of the Grievance Settlement Board.

Union counsel submitted that matters arising from the employer’s actions and decisions relating to the grievor’s employment fall under the collective agreement. As they are matters outside WSIA, they are matters outside the jurisdiction of the WSIB as set out in section 118.The union relied on Smith and Bergounhon and Ministry of Solicitor General and Correctional Services GSB No. 1598/96 (Abramsky, 1997) which held that the WCA does not cover all work-place injuries and does not pre-empt the entire field of work related injuries. As the WCA could not bar claims, which it did not cover, the Grievance Settlement Board held that it had jurisdiction over claims for compensation not covered by the WCA.

Union counsel submitted that the Lister case is distinguishable from the case at hand, as the claim in Lister was based only on an assault at the workplace and not on the employer’s response to the assault.

The union relied on Welland County General Hospital and Ontario Nurses’ Association, 1987 CanLII 1312 (ON WSIAT), 5 W.C.A.T.R. 97, [1987] O.W.C.A.T.D. No. 412, decision No. 53-87 in which the Board found that it had jurisdiction to award sick benefits, as the claim was not compensable by the WCB. Union counsel then submitted that the OPSEU/Paul Gibson and Ministry of the Solicitor General and Correctional Services GSB No. 1478/89 (Kaufman, 1998) decision succinctly articulated the relationship between the remedies under the WCA and remedies sought under the collective agreement when it held that the Grievance Settlement Board has jurisdiction over rights claimed under the collective agreement with the exception of compensation for work-related injuries which have been determined to have been compensable under the WCA.

The Board first considered whether a worker is entitled to seek a remedy before the GSB where the claim arises from an accident which is not compensable under the WSIA. The Board cited Re Welland County Hospital and Re Smith/Bergounhon and concluded:

These decisions are consistent with section 26 of the current WSIA, which bars actions when benefits have been paid. As no benefits had been paid, no action was statute barred.

Therefore, a union is not barred from pursuing an employee’s claim, where the WSIB has determined that an employee’s claim is not covered and is not compensable under the WSIA. The employer is not assisted by section 118 of WSIA, as section 118 only circumscribes the jurisdiction of the WSIB to matters falling under the statute and does not cover areas outside the legislation.

The Board, however, had to go on and determine whether the GSB had jurisdiction to provide supplementary or additional damages with respect to an accident which was covered and compensable under the WSIA, since some of the grievor’s claims in that case had been compensated under the Act. The Board reviewed the GSB jurisprudence including Re Rigglesworth, and the Re Lister line of decisions. At p. 13, the Board concluded:

In my view the cases of Lister and Thompson, and as endorsed in Fleming and in Johnston in obiter, are a preferable approach to follow when determining the Board’s jurisdiction, where a claim has been filed and found to be covered under WSIA, as Rigglesworth ignores the impact of the predecessor to section 26, particularly section 26(2) of WSIA.

When section 26 is looked at in its entirety, it covers two aspects. The first, section 26(1) prevents any right of action for benefits, other than a right to claim benefits through the WSIB. The second, section 26(2), provides that entitlement to benefits under the WSIB is in lieu of, or instead of, “all rights of action (statutory or otherwise)...”. The benefits are therefore a replacement for all rights of action resulting from “an accident happening to the worker ... while in the employment of the employer.” Section 26(2) would not be necessary if an employee was only prevented from seeking benefits from other sources. Therefore reading section 26(2) in conjunction with section 2 of WSIA, which defines an “accident” and the right to benefits, section 26(2) prevents a worker from pursuing any action against the employer for any damages arising from an accident for which benefits were paid.

(Emphasis original)

The Board in Re Gibbon next turned to the following issue: “Does article 9.1 entitle a worker to bring claims for damages arising from a violation of that article, which are not covered under WSIA and make other remedial claims, through the grievance procedure?”

In answering that question, at p. 14 the Board observed:

As held in Lister, there is jurisdiction to interpret and apply article 9.1 of the collective agreement, and make a declaration that the employer has breached article 9.1 by not providing a reasonable and safe atmosphere for the grievor, but there is no jurisdiction to award damages which would otherwise flow from the source of the compensable claim under WSIA. However, as there is nothing in WSIA that prohibits the parties from creating separate contractual rights outside the scope of WSIA, parties can agree to additional rights in their collective agreements, but given the language of section 26(2) that bars workers from exercising other rights of action, it would have to be clear in the collective agreement that the parties agreed to provide benefits which were in addition to any benefits that an employee may receive under WSIA.

The Board proceeded to review the decisions in Re Fleming and Re Johnston and observed at p. 14-15:

Similarly, Article 9.1 clearly articulates that there is a responsibility on the employer to provide a safe and healthy working environment for the grievor during her working hours, which is a separate contractual right, over which this Board has jurisdiction to interpret any apply. As the parties are not barred by section 26 of WSIA from providing for additional benefits in a collective agreement, which can be enforced through the grievance procedure, this Board has the jurisdiction to award monetary damages which were not covered or compensated for in lieu of the grievor’s rights under WSIA, and non-monetary remedies flowing from a declaration that the employer has failed to provide a safe and healthy working environment.

The Board set out the principles it derived out of the arbitral jurisprudence as follows:

1. the Board does not have jurisdiction to make any remedy for any additional or supplemental damages, however characterized, which have as their source, the “accident”, as defined under WSIA as Ms. Gibbon had compensable benefits under that Act; but

2. the Board has jurisdiction to hear a claim which rests upon a source which was not covered and was not compensable under WSIA; and

3. the Board has jurisdiction to award non-mandatory remedies upon a declaration that the employer has failed to provide a safe and healthy working environment pursuant to its obligations under article 9.1.

The grievor in the instant case is seeking damages for mental anguish/pain and suffering. The very question of whether the Board has jurisdiction to provide such a remedy where the claim arose from a compensable injury was considered by the Board in Re Gibbon. The Board dealt with that issue very briefly as follows:

Although damages for pain and suffering may be difficult to prove and achieve, these heads of damages relate to the scope of damages, and are within the jurisdiction of the Grievance Settlement Board. However, what is not included within our jurisdiction, are damages for pain and suffering which have as their source, the accident.

Turning to the issues in the instant case, how does the foregoing case law apply? Here, the grievor’s injury has been held to be a compensable “accident” and benefits under the WSIA have been approved. Thus, her pursuit of additional monetary compensation, i.e. the difference between the benefits she received and her actual total monetary loss, is clearly in relation to a compensable injury. Apart from the now isolated decision in Re Rigglesworth, all of the Board decisions, including Re Gibbon which was decided under the current legislation, clearly hold that the Board lacks jurisdiction to award such additional damages for losses arising from a compensable injury.

Secondly, the grievor here is claiming damages for pain and suffering/mental anguish. The Board in Re Gibbon directly addressed this issue and concluded that as a result of S. 26(2) of the WSIA, damages for pain and suffering/mental anguish may not be sought from the GSB where the source of the pain and suffering is the compensable injury. That clearly is the case in the instant case.

Nevertheless, counsel for the union argued that all of the cases decided under the predecessor legislation, including Re Lister, Re Fleming, Re Thompson and Re Johnston are distinguishable since S. 14 of the Workers Compensation Act, the predecessor provision, which applied in those cases was different in a critical way, than S. 26(2) of the WSIA which governs in the instant case. The union’s argument is as follows. The predecessor provision applied in the Lister line of cases read:

The provisions of this Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker or members of his family are or may be entitled against the employer of such work, or any executive officer thereof, for or by reason of any accident happening to him or any industrial disease contracted by him on or after the 1st day of January, 1919, while in the employment of such employer, and no action lies in respect thereof.

(Emphasis added)

Counsel points out that when the Workers Compensation Act was repealed and the WSIA enacted in 1997, S. 26(2) of the new Act replaced the predecessor provision. S. 26(2) reads,

Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependant has or 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 or an occupational disease contracted by the worker while in the employment of the employer.

(Emphasis added)

Counsel thus points out that the new provision omits the words “all rights and” which had existed in the predecessor provision. He submits that whereas the predecessor legislation had the effect of extinguishing all rights as well as all rights of action, as a quid pro quo for the benefits made under the Act, the current S. 26(2) only extinguishes “all rights of action”. Section 26(2) does not take away any right an employee has against the employer by reason of a compensable injury, except the “right of action”. Citing the definition of “action” in S. 1 of the Courts of Justice Act, counsel submits that since the right of grievance under a collective agreement is a right, which is not a right of action, S. 26(2) does not extinguish the right of grievance with respect to a compensable injury.

Union counsel did acknowledge that Re Gibbon (supra) was decided under the new S. 26(2). However, he submits that in that case neither the union nor the Board recognized the different language in the old and the new provisions. Since the union in Re Gibbon did not make the argument he raises here, counsel submitted that the Board ought not be dissuaded by the Re Blake decision, from considering his argument. He noted that the effect of the change in language in S. 26(2) has never previously been addressed by the Board. In sum, union counsel’s position was that the Board should depart from its “make whole” approach to remedial jurisdiction, only if it is clearly limited by the WSIA. It was his submission that S. 26(2) of the WSIA only denied employees their “right of action”. Rights other than a right of action are left unaffected by S. 26(2). Since a grievance is not an “action”, employees continue to have rights to grieve under the collective agreement, and the right to grieve includes the right to a make whole remedy.

Employer counsel submitted that all of the cases relied upon in support of a “make whole” approach to remedy are not helpful to the union here. Most of them involved human rights violations. In none of them was the Board faced with legislation which granted exclusivity to another tribunal, as is the case here. She relied on Welland County Hospital, (supra) to argue that any benefits negotiated in a collective agreement in favour of employees suffering a compensable injury, over and above the benefits under the WSIA must be explicitly set out. The collective agreement does not provide for any monetary benefits to an injured worker, that is not covered by the WSIA. Therefore, even if the Board is of the opinion that some of the losses the grievor has suffered, are not compensated by the WSIA, it had no jurisdiction to provide for such benefits. The legislature had determined in the WSIA what an injured worker’s monetary entitlements should be. Whether or not such entitlement is adequate or fair is immaterial. That is all he/she is entitled to.

Employer counsel submitted that if the grievor is awarded compensation by the GSB, it results in a windfall to her. She has already been compensated under the WSIA, and will be compensated again by the GSB. She argued that public policy also supports the Board declining jurisdiction. She submitted that the WSIA was intended to be a comprehensive system for compensating all injured workers throughout Ontario. If the Board assumes jurisdiction to award the compensation sought by the union, it would place unionized OPS employees who are injured at work in a preferred position of enjoying benefits, which are not available to non-union employees in Ontario.

The employer’s whole argument is predicated on the exclusivity theory. That is, that the only monetary compensation available to an employee injured at work in Ontario is that accorded under the WSIA. In order to determine whether there is such an exclusivity, the legislation must be examined. Counsel referred to S. 118(1) of the WSIA. It stipulates that the WSIB has exclusive jurisdiction, “to examine hear and decide all matters and questions arising under the Act ...” Section 118(2) lists some of the matters over which the WSIB has exclusive jurisdiction. In my view the “matters and questions arising under this Act” are those that determine a worker’s eligibility to benefits under that Act, the types of benefit and the quantum of benefit. All of the issues listed in S. 118(2) are issues that are relevant for the determination of a worker’s eligibility to the various types of benefits provided under that Act. Where, as here, an employee is claiming that the employer has failed to make reasonable provisions for her safety and health during the hours of her employment, this Board is not called upon to decide any of the issues that arise under the WSIA. The Board’s task is to determine whether the employer had complied with the undertaking it had made under the collective agreement, and if a violation is found, to remedy her losses. In assessing a grievor’s losses, the Board will take into account any monetary compensation the grievor has received, including any benefits under the WSIA. Such benefits obviously reduce her monetary losses. If it turns out, as the employer states, that in view of the quantum of benefits the grievor has received under the WSIA and the collective agreement, the grievor has suffered no monetary loss, then the Board may not award any damages for monetary loss. Similarly, if the grievor had been compensated for pain and suffering/mental anguish under the WSIA, the Board will have to take that into account in assessing damages in the event it determines that the grievor was entitled to such damages. For the same reasons, the Board disagrees that a windfall results if the Board assumes jurisdiction. The grievor’s entitlement is to be made whole and nothing more.

It follows therefore that S. 118(2) does not have the effect of ousting this Board’s jurisdiction to remedy the grievor, if a contravention of article 9(1) of the collective agreement is established. Section 26(2) must be analysed in order to determine whether or not that provision has that result.

There is no dispute that, apart from Re Gibbon, all of the decisions relied upon by the employer were made under the predecessor provision. Under that provision the benefits under the Act were “in lieu of all rights and rights of action, statutory or otherwise.” As indicated by the word “and”, two things were traded off in return for the benefits under the Act. (1) All rights statutory or otherwise and (2) All rights of action, statutory or otherwise. This was recognized by Arbitrator Samuels in Re Lister at p. 5:

This section says that the compensation scheme provided in the Act is “in Lieu of all rights and rights of actions, statutory or otherwise, to which a worker ... may be entitled against the employer of such worker ... by reason of any accident happening to him” (emphasis added) Thus, the legislative compensation scheme takes the place of both rights and rights of Action. And this applies to these rights whether they are statutory or otherwise.

(Emphasis original)

A careful review of the Lister line of cases indicates that the conclusion that a grievor’s right to a remedy under a collective agreement had been traded off was based on the trade off of “all rights” in S. 14. Thus in Re Lister, at p. 6, the Board wrote:

The grievor claims a right to the remedy of damages under the collective agreement. This is a right against the employer which arises because of the “accident”. Such a right is replaced by the compensation provided by the Workers’ Compensation Act. Section 14 of the Act says that the legislative compensation scheme is “in lieu of” such a right.

(Emphasis original)

The Board explicitly held that the Board’s jurisdiction is not ousted by the trading off of all “rights of action”, but concluded that such ouster results from the trading off of “all rights” statutory or otherwise. At p. 9 it wrote:

The Union argues that, in like vein, a proceeding before the Grievance Settlement Board is not an “action”. We agree.

But the grievor is attempting to enforce a “right” which has been replaced by the legislative compensation scheme in the Workers’ Compensation Act. This case is not like Gonneau, 227/81 (Teplitsky), where the Board awarded damages for loss to the grievor’s vehicle. Nor is this case like Welland County General Hospital, where the injury suffered was not compensable and the claim was for sick benefits not covered by workers’ compensation. Here the grievor is claiming damages for personal injury arising out of a compensable accident. This is precisely the type of loss for which, pursuant to section 14 of the Workers’ Compensation Act, the legislative scheme has replaced other “rights”, “statutory or otherwise”. The grievor’s “right” to damages under Article 18.1 of the collective agreement is encompassed by this language. The collective agreement falls within the rubric “or otherwise”.

(Emphasis original)

At p. 10, the Board concluded: “We cannot enforce “a right” which has been taken away by section 14 of the Act”. In Re Thomson, the Board quoted the foregoing reasoning in Re Lister with approval.

Employer counsel’s response to the union’s argument based on the exclusion of the words “all rights” in S. 26(2) was to the effect that in Re Gibbon the Board had determined that S. 26(2) was the same as the predecessor provision. She conceded that a proceeding before the GSB is not “an action”, but submitted that the predecessor provision and S. 26(2) are in essence the same despite the exclusion of the words “all rights”. She submitted that the Board in Re Gibbon had interpreted and applied S. 26(2) in the same manner as the previous decisions had interpreted and applied the predecessor provision. She submitted that, I am bound to follow Re Gibbon, in accordance with the principle in Re Blake, 1276/87 (Shime).

It is my conclusion that the exclusion of the words “all rights” in the current S. 26(2) is not a difference without consequence. It is clear that the Lister decision which first interpreted the predecessor provision, and which was followed in subsequent decisions, was clearly based on the existence of the words “all rights” in that provision. The Board explicitly concluded that its jurisdiction is not ousted by the trade off of the “all right of action” part of the predecessor section. In the present S. 26(2) the only trade off that exists is of “all right of action”. The Board held, and the employer in the present case concedes, that an arbitration proceeding before the GSB is not captured by the term “right of action”. Therefore, it must logically follow that S. 26(2) as presently worded does not involve a trade off any rights which an employee otherwise has before this Board.

The grievor’s right to monetary compensation for a violation of article 9(1) is not predicated upon an explicit provision in the collective agreement providing for such compensation over and above benefits under the WSIA. The “right” the grievor has under the collective agreement is the right to be provided reasonable provision for her safety and health during her hours of work. Where there is a violation of that right, or for that matter any other right under the collective agreement, the Board derives its remedial jurisdiction from the Crown Employees Collective Bargaining Act and the Labour Relations Act. The Board’s remedial powers are not dependent on specific provisions for remedy stipulated in the collective agreement. Thus the Board has the power to order any remedy it deems appropriate in the circumstances to make the grievor whole.

In my view, Re Blake does not preclude me from interpreting S. 26(2) as I do. While in that case the Board considered that the test of “manifest error” was too lax for a tribunal such as the GSB to not follow its own prior decisions, it was recognized that in “exceptional cases” a subsequent Board may decline to follow a prior decision. While the Board there deliberately refrained from setting out what constitutes exceptional circumstances, in my view such exceptional circumstances are clearly present in the instant case. The employer did not dispute the union’s contention that in Re Gibbon, the parties nor the Board turned their minds to the different wording in S,. 26(2) as compared to its predecessor, specifically the deletion of the words “all rights”. The union in that case did not make the argument based on the distinction in the wording, and therefore the Board had no opportunity to consider the merits of such an argument. When a new legal argument is made, which was not made before the previous Board, and which that Board had no occasion to address, not only is it appropriate but I am required to determine the argument made before me. I have concluded that the union’s argument has merit, that the WSIA does not, as presently worded, restrict the GSB’s remedial jurisdiction that it otherwise has.

For the foregoing reasons the employer’s motion objecting to the Board’s jurisdiction is hereby dismissed.

Dated this 6th day of October, 2005 at Toronto, Ontario