GSB#2015-0548; 2015-1818

UNION# 2014-0263-0031; 2015-0263-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Rosati)

Union

• and -

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

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Daniel Anisfeld Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING DATE

January 16, 2018

DECISION

1The grievances before me allege discrimination and harassment on the part of the Employer. They assert the Grievor experienced various medical symptoms as a result of the stress caused by the Employer’s actions, ultimately forcing her to take time off work. The grievances seek, among other things, compensation for lost time and medical expenses incurred. The Grievor has filed a claim for compensation under the Workplace Safety and Insurance Act which has been denied by the Workplace Safety and Insurance Board (“WSIB”). An appeal from that decision has been filed with the WSIAT. The Employer takes the position an arbitrator has no jurisdiction to grant those remedies, even if the particulars which the Union has provided are all treated as true. This decision determines that issue.

2The Employer relies upon OPSEU (Monk et al.) v. Ontario (MCSCS and MCYS), [2010] OGSBA No. 119 (Gray) and subsequent decisions of this Board. In Monk, Arbitrator Gray held:

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.

111In determining whether this restriction applies to any particular one of the grievances that allege adverse health effects resulted from exposure to second hand smoke, the question is not whether a claim for compensation was made and granted under the pertinent statute in respect of the injury or illness alleged in the grievance. The proper question is whether an injury or illness of the sort alleged by the grievor would be or would have been compensable under the applicable statute if proven. If that question has been answered in proceedings under the WCA/WSIA, then that answer governs. If that question has not been answered in proceedings under the WCA/WSIA, either because no claim for compensation has been made with respect to the alleged injury or illness or because such a claim was refused for reasons from which it is not apparent whether the tribunal considered an injury or illness of the sort alleged to be compensable in nature, then in any case in which the parties cannot agree on the answer I will have to determine the question myself, as arbitrator Sim did in the University of Saskatchewan matter, subject to any contrary ruling that the union or grievor may be able to obtain in proceedings under the WCA/WSIA.[71]

The decision was upheld on judicial review: 2012 ONSC 2348, 2013 ONCA 406.

3Monk involved claims related to physical disability. Subsequent decisions of this Board applied its reasoning to harassment and stress claims: OPSEU (Patterson) v. Ontario (MCSCS), GSB No. 2015-1660 et al., March 21, 2017 (Briggs); OPSEU (Mohamed) v. Ontario (MAG), GSB No. 2015-3016 (Gee); and AMAPCEO (Wilson) v. Ontario (MNRF), GSB No. 2016-1556 (Dissanayake). Those cases in turn rest on decisions of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”): Decision No. 2157/09 and Decision No. 1945/10. In each of those decisions, a panel of the WSIAT concluded the restriction then contained in section 13 of the Workplace Safety and Insurance Act (“WSIA”), which excluded entitlement to benefits for mental chronic stress, were contrary to section 15 of the Charter and thus inoperative in the case before them. The relevant subsections of section 13 read:

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

4It is useful to note at this point that section 13 was significantly amended effective January 1, 2018, to remove the exclusion of chronic mental stress claims. The relevant new subsections provide as follows:

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

(4.1) The worker is entitled to benefits under the insurance plan as if the mental stress were a personal injury by accident

(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.

Transitional provisions made this change applicable to most claims in respect of mental stress that occurred on or after April 29, 2014: see WSIA s. 13.1.

5Counsel for the Union does not take issue with Monk. However, he argues Patterson and Wilson (and presumably the other cases which applied Monk to claims for chronic stress due to workplace harassment) were wrongly decided. Counsel argues those cases incorrectly presumed that as a matter of law the restriction in old section 13 was unconstitutional. Counsel argues this is incorrect, as section 124 of the WSIA provides each panel of the WSIAT to “make its decision based upon the merits and justice of a case and it is not bound by strict legal precedent”.

6I am not persuaded by this argument. I note first that there is no express presumption in either Patterson or Wilson that old section 13 is unconstitutional. I also note that in effect the same argument was advanced by the Association in Wilson: see para. 17 and 19. In Wilson, Arbitrator Dissanayake did not state the WSIAT had decided that the restriction in old section 13 of the WSIA was unconstitutional. Rather, he held “the Tribunal has, through its decisions, made a clear statement that it would not be applying the provisions of the WSIA which disentitle benefits in cases involving mental health issues”: see para 25; see also para 27.

7Notwithstanding, I accept, as argued by counsel for the Union, the WSIAT has not (and indeed cannot) declared the restrictions in old section 13 unconstitutional for all purposes. Rather a panel of the WSIAT is restricted to finding the restriction inoperative in the case before it. I do not accept, however, counsel’s argument that this gives rise to a “real danger”, if the Grievor’s claim for compensation is dismissed in these proceedings, that her claim will be denied by the WSIAT and she will be left without a remedy. Counsel for the Employer advises that every decision by a panel of the WSIAT subsequent to Decision No. 2157/09 in which the issue has been raised has concluded the restrictions contained in old section 13 are unconstitutional and thus inoperative in the case before it. While possible, it is improbable a panel of the WSIAT hearing the Grievor’s claim would reach a different conclusion if the Charter issue is raised before it. In any event, as stated in Monk, in the absence of a ruling by the WSIAT on the Grievor’s claim, it falls to me to determine whether her claim, if proved, would be compensable under the WSIA, subject to any subsequent ruling by the WSIAT.

8This brings me to counsel for the Union’s second argument. Counsel emphasizes certain words in new section 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.

9Counsel argues the majority of the events which gave rise to the Grievor’s stress were actions of the Employer. Thus counsel argues her claim under the WSIA would be barred on this basis.

10As with the argument the Union’s argument about the constitutionality of old section 13(5), in the absence of a decision by the WSIAT, I am required to determine this matter (subject to any subsequent ruling of the WSIAT).

11Counsel for the Union concedes the premise of this argument is that a worker is disentitled to benefits for mental stress caused by any action of an Employer. I do not accept this premise. New section 13(5) refers to actions “relating to the worker’s employment” (as does, for that matter, old section 13(5)). Harassment and discrimination may arise from and in the course of a worker’s employment, but they do not relate to that employment. They are not the kinds of actions and decisions which a worker might reasonably expect an employer might make in relation to their employment, such as “a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment”. On the contrary, they are prohibited acts.

12In my view, the facts plead by the Grievor, if proved, would constitute a disability caused by chronic mental stress arising in and out of the course of her employment. As such, it is a compensable disability under new section 13(4) of the WSIA if the date of that mental stress is on or after April 29, 2014. To the extent that the mental stress predates April 29, 2014, and would otherwise be excluded old section 13, I find that section unconstitutional and inoperative for the reasons stated in Decision No. 2157/09 and Decision No. 1945/10.

13Accordingly, I find Monk applies to the case before me and that the claims for compensation for lost time and medical expenses incurred must be struck.