GSB# 2015-3339; 2015-3340; 2016-2476; 2016-2477

UNION# 2015-0234-0203; 2015-0234-0204; 2017-0234-0011; 2017-0234-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Foley et al)

Union

• and -

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

Employer

BEFORE

David R. Williamson

Arbitrator

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Shiran Brener Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 11, 2018

DECISION

1Before me are two grievances filed by Ms. Elaine Foley, dated October 28, 2015, and January 5, 2017, by which she contends that the Employer has violated both the collective agreement and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (as Amended) by failing to provide her with a harassment-free and safe workplace. Also before me are two grievances from Ms. Kim Fisher, dated October 28, 2015, and January 5, 2017, that make the same allegations. Both Ms. Foley and Ms. Fisher are long-term employees with over thirty years of service each and who work as Correctional Officers at the Milton Vanier Centre for Women.

2The Grievors allege they experienced workplace harassment and violence at the hands of a workplace colleague, Mr. Mark Cameron, and that the Employer has failed to protect them. They contend that as a result they have suffered mental distress and seek monetary damages from the Employer and declaratory relief. There is no allegation made that either of the Grievors has experienced harassment on one of the enumerated grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19.

3The Union has advised it is seeking the following remedies on behalf of the Grievors:

a. A declaration that the Employer has violated Articles 2 and 9.1 of the Collective Agreement;

b. A declaration that the Employer has violated the Occupational Health and Safety Act;

c. A declaration that the Employer has violated its own policies with respect to harassment and workplace violence;

d. General and specific damages for failing to protect their safety as well as for the significant distress caused by this failure;

e. To be made whole;

f. Full redress; and

g. Such other relief as counsel may request and as to the Board seems just.

4Because there is a monetary remedy being sought by the Union, in addition to the three declarations, the Employer has brought forward a Preliminary Motion at the outset of this Hearing to the effect that the Board does not have the jurisdiction to award damages in respect of injuries compensable under the Workplace Safety and Insurance Act (“WSIA”). For the purposes of this Preliminary Motion only, the Employer is willing to accept as true the allegations put forward by the Grievors and the Union. This Decision addresses only this Preliminary Motion.

5The parties are in agreement that these grievances are being addressed in accordance with Article 22.16 of the Collective Agreement and that this Decision is therefore without precedence or prejudice.

6Article 2 of the Collective Agreement is the Management Rights provision. It states:

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss, or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workforce, the kinds and locations of equipment, the merit system, training, development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

7Article 9 of the Collective Agreement addresses Employees’ Health and Safety, and where Article 9.1 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 co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

8The Occupational Health and Safety Act, R.S.O., 1990 (as Amended), addresses, in relevant part, the duty of an employer in the following way:

S. 25 (2) ….an employer shall:

(h) take every precaution reasonable in the circumstances for the protection of a worker.

9The Employer takes the position that the monetary remedy sought by the Grievors for their injuries, if proven, are damages payable under the Workplace Safety and Insurance Act, 1997 (as amended), and that the Board has no jurisdiction to make an award for monetary losses that are compensable under this Act. It is the submission of the Employer that the Grievors could have filed a claim with the Workplace Safety and Insurance Board for reimbursement for lost time and monetary compensation for damages, including mental stress, and that an arbitrator is without jurisdiction to award monetary compensation that is available to the Grievors under the provisions of the Workplace Safety and Insurance Act for lost time or for pain and suffering including mental anguish.

10In the course of setting out its position the Employer made reference to what has been described as the “historic trade-off” contained in Workplace Injury Compensation Statutes, described in the following way by Arbitrator Owen Gray in Re OPSEU (Monk et al) v. Ontario (Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Services) [2010] OGSB (Gray):

Early in the twentieth century, Ontario (and other jurisdictions) enacted legislation to provide for no-fault compensation of workers for workplace injuries, out of a compensation scheme funded by mandatory employer contributions. Such legislation involves what is commonly described as a “historic trade-off”. The right of workers to take legal proceedings against their employers to recover compensation for workplace injuries was extinguished and replaced with a right to compensation that did not depend on the employer’s being solvent or proven to be “at fault”, and was not affected by questions of their own voluntary assumption of risk or contributory negligence. In turn, employers were protected from liability to their employees for workplace injuries, in return for their mandatory contributions to the compensation fund. As is typical in such legislation, the Ontario legislation created an administrative agency with exclusive jurisdiction to administer the fund, assess entitlement to benefits and determine the precise boundaries of the “historic trade-off”, removing those questions from consideration by courts.

11As such, the Employer seeks a Decision in this preliminary matter to the effect that, even if the allegations of the Grievors were to be proven at arbitration, the Board does not have the jurisdiction to order the Employer to pay monetary compensation or damages to the Grievors.

12Relevant provisions of the Workplace Safety and Insurance Act, in effect from 1997 to the present time include:

Rights of Action: No action for benefits.

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

Benefits in lieu of rights of action.

26 (2) 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 dependent 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.

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.

13Provisions contained in the Workplace Safety and Insurance Act, from January 1, 2018 onwards include:

Mental Stress.

13 (4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.

Same, exception.

13 (5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer 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 the employment.

Transition rules re mental stress. New claim.

13.1 (2) If a worker’s mental stress occurs on or after April 29, 2014 and the worker has not filed a claim in respect of entitlement to benefits for mental stress before January 1, 2018, the worker or the worker’s survivor may file a claim for entitlement to benefits for mental stress with the Board and the Board shall decide the claim in accordance with subsection 13 (4) as it reads at the time the Board makes its decision.

Time Limits.

13.1 (5) A claim filed under subsection (2) that is made in respect of mental stress that occurred on or after April 29, 2014 and before January 1, 2018 must be filed on or before July 1, 2018.

14In support of its position and submissions the Employer made reference to the following arbitral authorities and court decisions: Re OPSEU (Monk et al) v. Ontario (Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Services) [2010] OGSB (Gray); Re OPSEU v. Ontario (Ministry of Community Safety and Correctional Services) 2013 Ontario Court of Appeal 406; Re OPSEU (Patterson) v. Ontario (Ministry of Community Safety and Correctional Services) [2017] OGSB Briggs; Re OPSEU (Mohamed) v. Ontario (Ministry of the Attorney General) [2017] OGSB Gee; Re Association of Management, Administrative and Professional Crown Employees of Ontario (Wilson) v Ontario (Ministry of Natural Resources and Forestry) [2017] OGSB Dissanayake; Re OPSEU (Grievor) v. Ontario (Ministry of Community Safety and Correctional Services [2017] OGSB Carrier; Ontario Workplace Safety and Insurance Appeals Tribunal [2014] Decision No. 2157/09; Ontario Workplace Safety and Insurance Appeals Tribunal, [2015] Decision No. 1945/10; and to the Operational Policy documents of the WSIB Ontario, numbers 15-03-14 and 15-03-02, on the subject matter of entitlement to benefits for Chronic Mental Stress and Traumatic Mental Stress.

15It is the position of the Union that the Employer by its actions or inactions has failed to provide a safe workplace for the two Grievors who were the recipients of verbal threats and physical intimidation from Mr. Cameron in July, August, and October of 2015, and again in January 2017. These actions and inactions of the Employer are said to be a breach of the Health and Safety provisions of Art. 9 of the collective agreement, the Occupational Health and Safety Act, and an improper exercise of management rights as set out in Art. 2 of the collective agreement. The Union asserts that as a result of this work environment the Grievors suffered from stress and submits that there is no requirement for there to be a workplace injury in order to trigger a violation of Article 9 of the collective agreement.

16By way of contrast, submits the Union, the provisions of the Workplace Safety and Insurance Act require some kind of an injury in order to be engaged, and notes that neither Grievor asserted they had sustained any physical or mental injury, made a claim for lost wages, or applied for any other WSIB benefits. As such, it is the submission of the Union that this case is distinguishable from that of Re Monk (supra), and that the line of cases emanating from that do not have applicability in the instant matter.

17Rather, the focus of the grievances in the instant matter, submits the Union, is the failure of the Employer to protect the health and safety in the workplace of Ms. Foley and Ms. Fisher, and what is sought is a remedy for the Employer’s violation of the collective agreement and the Occupational Health and Safety Act. In that the provisions of the Workplace Safety and Insurance Act cannot be triggered in the absence of an injury, and as the Grievors have not asserted or made claims of any injury or disability, the Union argues the Monk line of cases cannot limit the remedy available for the Employer’s violation of the collective agreement and the Occupational Health and Safety Act. Accordingly, the Union urges that the case proceeds to be heard on its merits and that jurisdiction and the latitude of any potential remedy not be circumscribed from the outset.

18In support of its position and submissions the Union made reference to the following arbitral authorities: Re OPSEU (Schultheis) v. Ontario (Ministry of Community Safety and Correctional Services) [2018] OGSB Wacyk; Re OPSEU (Pereira et al) v. Ontario (Ministry of Community and Correctional Services) [2016] OGSB Harris; and to Re OPSEU (Samuels et al) v. Ontario (Ministry of Community Safety and Correctional Services) [2017] OGSB Dissanayake.

19In argument in rebuttal the Employer submits that while Article 9 of the collective agreement mirrors language found in the Occupational Health and Safety Act, it does not provide for monetary damages for any violation, is not designed to provide individual employees with the type of monetary relief sought by the Grievors, and that specific language would need to be clearly set out in Article 9 to ensure more.

20The Employer submits also that while mental stress may not show as an injury, it does fall into the same category as physical injury for purposes of claims under the WSI Act, and that the Grievors had the opportunity to make a claim for monetary damages under the provisions of the Act. As such, the Employer argues that the allegations and particulars of this case are in line with the Monk decision, that Article 9 of the collective agreement does not provide for independent remedies to the Grievors, and that its preliminary objection that monetary damages for mental stress or distress are not payable outside the parameters of the WSIB regime be sustained.

21The issue before the Board is that of whether it has jurisdiction to award compensatory damages to the Grievors who contend that the Employer has not provided a safe work environment and failed to protect them from harassment and violence in the workplace at the hands of a fellow employee and that as a result they have suffered mental distress. The Employer has agreed that for the purposes of this preliminary motion only it is willing to accept as true the allegations and particulars placed before the Board by the Union.

22Having duly considered the particulars, the submissions of the parties, the jurisprudence, and the arbitral authorities placed before me, I am of the view that this Board has the jurisdiction and the latitude to not only provide the Grievors with a declaratory remedy, but to also provide monetary relief if such is seen to be appropriate once having heard the evidence. What this Board is unable to provide, however, is a monetary award that is, in essence, a remedy pertaining to an event that is or would be compensable under the provisions of the Workplace Safety and Insurance Act (“WSIA”).

23This matter was addressed at paragraphs 109 and 110 by Vice-Chair Owen Gray in Re Monk (supra), a decision subsequently upheld in May 2013 by the Ontario Court of Appeal. Paragraphs 109 and 110 of Re Monk are set out below:

109The WCA/WSIA does not preclude a monetary remedy for breach of Article 18.1/9.1 unless it is, in substance, a remedy for the consequences of a compensable injury or illness. Monetary loss may flow from a breach of Article 18.1/9.1 in other ways, such as loss due to damage to personal property, or expenses or losses incurred to avoid or mitigate a risk to safety or health created by the breach. Where a claim for damages is made on behalf of a worker who has suffered a compensable injury or illness as a result of the breach, they can be awarded in respect of the breach if and to the extent that the worker would have been entitled to them even if she or he had not suffered a compensable injury or illness as a result of the breach.

110I find that this Board cannot award a grievor damages “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” if the alleged accident or disease is or was compensable under the WCA or WSIA, whichever applies.

24In the particulars the Grievors contend that arising out of the conduct of Mr. Cameron and the actions and inactions of the Employer they have experienced mental distress. They did not however lose wages from having taken time away from work; nor did they file a claim for compensation with the WSIB.

25As noted by Vice-Chair Briggs in Re Patterson (supra), it is not necessary to have suffered lost wages in order to have a WSIB claim that is valid. Neither is it a requirement to have already filed a compensation claim with the WSIB in order for the WSIB to consider an employee’s set of circumstances to be compensable under the Workplace Safety and Insurance Act.

26The two Decisions of the Workplace Safety and Insurance Appeals Tribunal, numbers 2157/09 and 1945/10, make clear that, if proven, there is entitlement to benefits under the WSIA for mental distress; both gradual-onset work related stress, as well as for mental distress that is an acute reaction to a sudden and traumatic event arising out of and in the course of an employee’s work. The mental distress brought about by workplace stress is now treated by WSIB in a similar manner as having incurred a physical injury. However, the Act continues to make clear that an employee 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 the employment.

27Ms. Foley and Ms. Fisher allege they have suffered mental distress as a result of the actions of a co-worker and the Employer’s failure to protect them. They seek inter alia, monetary damages from the Employer for the significant distress caused by this and for the Employer failing to protect them. While neither Grievor made a claim for any benefits under the Act, it is clear from the foregoing that there is entitlement to benefits under the Act for mental distress arising out of workplace stress of the kind experienced by Ms. Foley and Ms. Fisher. Section 26(2) of the Workplace Safety and Insurance Act provides, inter alia, that entitlement to benefits under this insurance plan is in lieu of all rights of action that an employee may have against his or her employer. (emphasis added)

28Accordingly, and for all the foregoing reasons, it must be found that this Board is without jurisdiction to make a monetary award to Ms. Foley or Ms. Fisher for the mental distress, if proven, resulting from the actions in the workplace of Mr. Cameron and the alleged failure of the Employer to protect them.

29The Board continues to have the jurisdiction, however, to provide a monetary remedy for a proven breach of Art. 9.1 unless it is, in substance, a remedy for a matter inside the jurisdiction of the Workplace Safety and Insurance Act. Such a monetary remedy for a breach of Art. 9.1 may be appropriate, as noted in Re Monk at paragraph 19, for losses due to personal property, or expenses or losses incurred to avoid or mitigate a risk to safety or health caused by the breach.

30As such, the Board continues to have the jurisdiction to provide the Grievors with a declaratory remedy as well as other monetary relief of the foregoing kind. What it does not have is the jurisdiction to make a monetary award to Ms. Foley or Ms. Fisher for the mental distress, if proven, arising out of the actions in the workplace of a co-worker and the alleged failure of their employer to protect them. The jurisdiction to make any such monetary award lies with the authorities administering the Workplace Safety and Insurance Act.