GSB# 2018-3413

Union# 2017-0526-0033

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Khan)

Union

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Daniel Anisfeld Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Shiran Brener Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 9, 2020

Decision

1This Grievance was filed by the Ontario Public Service Employees Union (the “Union”) on behalf of Addison Khan (the “Grievor”). The Employer has brought a preliminary motion asking the Grievance Settlement Board (the “Board”) to declare it has no jurisdiction to award the Grievor damages for pain and suffering or for lost wages and vacation days, following incidents of harassment at work because these are damages compensable under the Workplace Safety and Insurance Act, 1997 SO 1997, Schedule A (“WSIA”).

Background

2The Union provided the Employer with particulars in support of the grievance. For the purpose of this motion, the Employer agreed that I accept the particulars as true. The particulars are summarized as follows:

(1) The Grievor has been actively employed as a Criminal Registrar at the Superior Court of Justice (Toronto) for approximately 28 years.

(2) The Employer failed to conduct an appropriate investigation and/or take appropriate corrective action into two incidents of harassment that took place on March 21, 2017 and January 24, 2018. Furthermore, to the extent that the Employer has taken any steps to investigate these incidents, it has failed in its duty to inform the Grievor of the results of these investigations and/or to take appropriate corrective action in response to them.

(3) On or about March 21, 2017 at 9:52 a.m. the Grievor was harassed by Court Officer Degrassi (“Officer Degrassi”) in the course of routine workplace administrative matters.

(4) However, on this occasion, Officer Degrassi yelled the following at the Grievor, without provocation:

A) “Don’t fuck talk down to me”

B) “I know what I’m fucking doing!”

C) “I am not a fucking idiot”

D) “I will fucking talk to you how I want”

E) “What the fuck are you going to do about it!”

F) “I am not a fucking idiot, don’t talk down to me!”

G) “I will fucking talk to you how I want to talk to you!”

(5) The Grievor notified management of the incident and a brief investigation was conducted. The Grievor was informed that management had instructed Officer Degrassi that he was not permitted to speak to the Grievor or to enter the same courtroom as him until this matter was resolved.

(6) However, on or about March 23, 2017, Officer Degrassi approached the Grievor again in Courtroom 4-9, telling the Grievor he wanted to discuss the March 21, 2017 incident. The Grievor asked Officer Degrassi at this time not to speak to him or approach him.

(7) The Grievor was very distressed by this interaction, and was unable to attend work until the Employer’s investigation was complete.

(8) On about May 4, 2017, the Grievor filed a complaint with the Workplace Discrimination and Harassment and Prevention (“WDHP”) Office. An investigation was conducted and a finding was made out that the Grievor had been harassed contrary to the Ontario Occupational Health and Safety Act, R.S.O. 1990, c.O.1(“OHSA”).

(9) However, when the Grievor inquired as to what actions would be taken in response to this finding of harassment, he was denied this information. To date, the only information that the Grievor has received in response to this inquiry is a memo from the Grievor’s manager, Susan Johnson, sent on or about June 2, 2017, assuring him that corrective actions had been taken, but providing no specifics.

(10) The Grievor was subsequently instructed by his doctor that he could return to work. Upon his return, the Grievor was assured that he would not be scheduled to work in the same courtroom as Officer Degrassi.

(11) However, on or about January 24, 2018, the Grievor experienced a second incident of harassment at the hands of Officer Degrassi. On this occasion, the Grievor had been scheduled to work in courtroom 2-4. During the morning break, the Grievor was in the hallway when he was confronted by Officer Degrassi escorting an individual in custody from courtroom 2-3. He yelled the following insults at the Grievor as he passed him in the hallway:

(a) “Is there something wrong with your eyes?”

(b) “You are nobody to me!”

(c) “I don’t care about you!”

(12) The Grievor felt threatened and he was unable to carry out his duties in the courtroom. He was subsequently ordered by his doctor to go on stress leave.

(13) The Grievor filed a second complaint with the WDHP Office. This time, the Office refused to follow through with the investigation, stating that they did not have jurisdiction to pursue it.

(14) The Grievor’s managers eventually conducted an investigation, but failed to release any findings until on or about the Summer of 2019- over a year and a half after the second incident of harassment.

(15) The Grievor has experienced a significant decline in his mental health following these incidents and the Employer’s failure to take adequate steps to investigate and resolve them. He regularly experiences depression and has been diagnosed with post-traumatic stress disorder. He has been prescribed medication which impacts his mood and energy.

(16) The Grievor continues to feel unsafe at work.

(17) The Union requests the following as a remedy:

(a) A declaration that the Employer has violated the Collective Agreement and OHSA;

(b) An Order that the Employer pay damages for the Grievor’s pain and suffering

(c) An Order that the Employer pay damages for lost wages and vacation days;

(d) Such further and other relief as may be appropriate in the circumstances.

3During the hearing the Union advised that it would not be seeking an Order that the Employer pay damages for lost wages and vacation days.

Employer’s Submissions

4The Employer takes the position that the Board has jurisdiction to order declaratory and directive remedies for a breach of the Collective Agreement; however, the monetary remedies sought, if proven, are damages compensable under WSIA for which the Board has no jurisdiction to order. In this case, not only could the Grievor have filed a claim with the Workplace ad Safety Insurance Board (“WSIB”), but the Employer did in fact file a WSIB claim on the Grievor’s behalf on April 30, 2018. The Employer also points to the fact that the Grievor received a letter from the WSIB on October 17, 2018 in which the Grievor was told that given his lack of response to the Initial Entitlement Claim for Chronic Mental Stress, that the WSIB would not be taking further action in his claim.

5The Employer argues that the Grievor doesn’t get the opportunity to select the forum which might award him compensation for mental distress and pain and suffering referencing the “historic trade-off” contained in Workplace Injury Compensation Statutes, described 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.

6Relevant 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.

7Provisions 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.

8The Employer relies on the following arbitral authorities and court decisions in support of its position that the Board is precluded from awarding damages as the result of workplace bullying or harassment not related to Human Rights Code grounds as such damages are compensable under the WSIA: 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; Re OPSEU (Foley et al) v. Ontario (Ministry of Community and Correctional Services) [2018] OSGB Williams; 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.

Union Submissions

9While the Union acknowledges and accepts the arbitral and court decisions confirming that the Board does not have jurisdiction to award damages that are compensable under the WSIA, it argues the Board has jurisdiction to award damages for a violation of Article 9 of the Collective Agreement, including a violation of the Occupational Health and Safety Act, R.S.O..1990 (as amended) (“OHSA”). In particular, the Union notes that in the instant case, Officer Degrassi remains in the workplace and questions whether the Employer has taken all reasonable steps to provide a safe and harassment free workplace for the Grievor. For failure to take such steps, the Union submits that the Grievor is entitled to compensatory damages.

10Article 9 of the Collective Agreement covers Employees’ Health and Safety, and specifically 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.

8S. 25 (2) of OHSA provides that ….an employer shall:

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

11In this case, the Union argues that the Grievor is not asking the Board to provide relief for mental stress due to the workplace harassment. Rather, the Union is asking the Board to determine if the Employer took adequate measures to protect the Grievor in the workplace, whether or not the Grievor experienced mental stress. In this regard, the Union states that there should be monetary relief available to the Grievor based on his independent statutory rights to a safe workplace environment under OHSA and under the terms of the Collective Agreement.

12In support of its position, the Union relies on an unreported decision of Arbitrator Herman in City of Toronto v. Canadian Union of Public Employees, Local 79 (Shaw and Charles), August 11, 2015. In that decision, the Arbitrator awarded damages for pain and suffering and mental distress to a grievor who had witnessed an on-site workplace shooting but who had not filed a workplace injury claim under WSIA. Based on a finding that the grievor did not have a claim for workplace injury under the WSIA, and thus was not barred by Section 26(2) of the WSIA, the Arbitrator determined that the grievor was deprived statutory and collective agreement rights and protections due to the employer’s failure to take reasonable steps to provide a safe and healthy work environment and to take reasonable precautions to protect the grievor.

13The Union also references Ontario Provincial Police Association v. Ontario (Provincial Police), 2018 CanLII 82193 (ON LA) for support of its position that an independent statutory right to claim damages either under OHSA or a collective agreement exists arguing that an employer cannot be immunized from its obligation to provide a healthy and safe work environment under a collective agreement. In the OPP case, Arbitrator Abramsky concluded that although one of the grievors would have had a compensable claim under WSIA, that not all of his claims for damages would be precluded including a claim for damages for the failure of the employer to follow its policies under the collective agreement including a violation of OHSA. Arbitrator Abramsky awarded that grievor $5000.00 as damages for the violation of his collective agreement rights and the right to a healthy and safe workplace, while also noting that the grievor might be entitled to further relief under WSIA.

14The Union also distinguishes the Foley case by arguing that in Foley, the Arbitrator notes that arbitrators continue to have jurisdiction under the terms of the Collective Agreement to provide a monetary remedy for a breach of Article 9.1, unless it is in substance, a remedy for a matter within the WSIA’s jurisdiction.

Employer’s Reply Submissions

15In its reply, the Employer emphasizes that in the City of Toronto case, Arbitrator Herman stated that if the grievor Shaw could have made a claim under WSIA, no damages for mental distress and pain and suffering would have flowed. In addition the Employer notes that the other grievor (Charles), in that case, did make a claim under WSIA, and was not entitled to compensation for mental stress and pain and suffering, but rather was limited to receiving compensation related to reimbursement for repairs to his car that were caused as a result of the workplace incident.

16The Employer also submits that that the language in Article 9 of the Collective Agreement is similar to the language in Section 25 of the OHSA which does not make reference to monetary remedies. In absence of specific language in the Collective Agreement to provide remedial compensation over and above what is compensable under the WSIA, the Employer argues that the Board has no jurisdiction to make such orders.

Decision

17Having considered all of the submissions of the Parties and caselaw provided,

I have decided to allow the Employer’s preliminary motion. In the case before me, the Parties agree that the Grievor would have a claim, that if proven, would attract monetary damages for chronic mental stress and pain and suffering under the WSIA. In fact, the Union acknowledges that Grievor would not be entitled to damages for loss of wages or vacation days, as those claims would fall with the purview of WSIA compensable damages. The question before me is whether I have any jurisdiction to award compensatory damages related to pain and suffering as requested by the Union.

18Foley is directly on point. In that case the grievors experienced workplace harassment at the hands of a workplace colleague and argued that they were entitled among other things, to a remedy of general and specific damages for the employer’s failure to protect their safety as well as for the significant distress caused by this failure. Arbitrator Williams concluded at paragraphs 22 and 23 of his decision:

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.

19In Foley, at paragraph 26, Arbitrator Williams noted that under the WSIA, employees are not entitled to benefits for mental distress caused by an employer’s decisions or actions relating to a worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline or to terminate the employment. However, the Arbitrator concluded that seeking monetary damages for the significant distress caused by the actions of a co-worker and the employer’s failure to protect the grievors, was the type of damage arising out of workplace stress and therefore an entitlement to benefits under the WSIA.

20In the case at hand, the impact on mental stress is precisely what the Grievor has experienced because of the conduct of Officer Degrassi and potentially the action or inaction taken by the Employer. As in Monk, while a remedy for a breach of the Collective Agreement may be available, a monetary remedy for the consequences of a compensable injury or illness under the WSIA is precluded. This reasoning applies equally in this case.

21Having regard to the cases relied upon by the Union, it is clear that in the City of Toronto decision Arbitrator Herman was required to determine if the grievor Shaw could have made a claim under the WSIB before deciding if 26(2) of the WSIA would bar the Arbitrator from awarding damages. Given that Arbitrator Herman concluded that Shaw did not have a stand alone claim for damages or benefits, it was concluded that any damages for pain and suffering or mental distress were not barred by Section 26(2) of the WSIA. Whereas the WSIB claim made by the other grievor (Charles) prevented Arbitrator Herman from making any orders related to similar damages that were awarded to Shaw. Although Arbitrator Abramsky noted that one of the grievors in the OPP case could have made a claim under the WSIB, she too acknowledged that there is no jurisdiction to award WSIA compensable damages based on the Monk line of cases. While Arbitrator Abramsky ordered damages for violation of the collective agreement’s right to a safe workplace, she distinguished the damages as not resulting from a workplace injury, but rather, compensation for the failure of the employer in that case to uphold the safe workplace provisions of the collective agreement governing the parties in that case.

22I agree with the following comments and conclusions made by Arbitrator Williams in Foley that he had no jurisdiction to award damages for mental distress:

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.

23Accordingly, I allow the Employer’s motion and conclude that the damages for pain and suffering sought by the Union on behalf of the Grievor are barred on the basis of Section 26(2) of the WSIA. Once the case is heard on the merits, I will be prepared to hear arguments on any other remedial relief requested related to alleged violation of Article 9 or any other provision of the Collective Agreement. I do not have jurisdiction to consider any requests for relief that relate to mental distress or pain and suffering experienced by the Grievor arising out of the actions of Officer Degrassi or the alleged failure of the Employer to protect him, as those matters could have been compensable under the WSIA.

24This matter is referred to the Registrar to schedule a hearing date on the merits.