GSB# 2013-2085

UNION# 2013-0108-0105

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Grievor)

Union

• and -

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

Employer

BEFORE

Joseph D. Carrier

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Suneel Bahal (Senior Counsel) Braden McLean (Counsel) Treasury Board Secretariat Legal Services Branch

HEARING

Oral Submissions heard on June 29, 2021

Decision

1This matter was referred back to me by the Divisional Court pursuant to its oral decision of May 13, 2019 which was endorsed in written form on May 14, 2019 (Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2019 ONSC 2952.

2The Court in its decision ruled in paragraph 11 and 12 as follows:

11The remedy that the Applicant is requesting is that we refer this matter back to the same member of the GSB that heard it originally. If this is done, then the GSB will have an opportunity to analyze the caselaw fully and decide whether the exclusion does or does not apply. In this way, if the matter is pursued further, any court on judicial review will have the benefit of the GSB’s full analysis of the issue. In our view, this request is an appropriate one. Thus, there is no need for this court to conduct a fulsome analysis of the issue.

12For these reasons, we are allowing the application and remitting the matter back to the same GSB arbitrator for redetermination on the issue of whether the employment function mental stress exclusion applies.

3Accordingly, pursuant to that decision of the Divisional Court, I am to consider here whether or not what has been referred to as the Employment Function Exclusion or the Employment Function Bar applies or ought to have applied in the matter originally before me in Re OPSEU (Grievor) and Ontario (Ministry of Community, Safety and Correctional Services), GSB #2013-2085 (The “WA” Award”). In its decision, the Divisional Court was concerned that my decision was unclear as to whether or not I had fully considered the employment function bar in determining that the Workplace Safety Insurance Act, 1997 (the “WSIA”) precluded me from awarding monetary damages to the Grievor for mental stress injuries caused by the “Employer”. Indeed, the Court’s decision indicated that it was not satisfied that I had considered whether or not the employment function exclusion applied to the facts before me especially since jurisprudence and case law concerning the application of that exclusion had not been presented or argued before me in the first instance.

4In the circumstances, the issue presently before me, as the Court instructed, remains whether or not the employment function exclusion should properly have been applied in the circumstances of the matter then before me.

5To be clear, there was and is no dispute between the parties that, notwithstanding prior decisions of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) and those of this Grievance Settlement Board (GSB) to the effect that Section 13(4) and the first sentence of Section 13(5) would not be applied by reason of the operation of Section 52(1) of the Constitution Act, 1982, the remainder of Section 13(5) of the Workers Safety Insurance Act of Ontario (WSIA) continue to apply. To put it simply the provisions in the WSIA which excluded mental stress from insured coverage pursuant to the legislation would not be applied or rather stated in a positive way, a worker would thereafter be entitled to benefits under the insurance plan for mental stress unless that mental stress was “caused by his or her employer’s decisions or actions relating to the workers employment, including a decision to change the work to be performed or the working conditions to discipline the worker or to terminate the employment”. In effect, mental stress occasioned by a worker was to be considered to be insured unless it fell within the employment function exclusion set out in the second sentence of Section 13(5) of the WSIA.

6As they existed at the time of the incident in question and at the time of my original decision Sections 13(4) and Section 13(5) of the WSIA appeared as follows:

Exception, mental stress

13 (4) Except as provided in subsections (5) and 14(3), a worker is not entitled to benefits under the insurance plan for mental stress. 1997, c. 16, Sched. A, s. 13 (4); 2016, c. 4, s. 1.

Same

13 (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 the employment. 1997, c. 16, Sched. A, s. 13 (5).

7There is no dispute between the Parties that the WSIA bars the Grievance Settlement Board from ordering monetary damages in respect of workplace injuries including mental stress workplace injuries that would be covered by that Act. In the circumstances, if the employment function exclusion applies in the matter at hand, the Grievor would not have been entitled to coverage or to the benefits provided pursuant to the WSIA. In that case, since the worker was not covered or insured pursuant to the WSIA, it would be open to the Grievance Settlement Board to consider and apply a remedy of monetary damages if appropriate.

8On the other hand, if the employment function exclusion was not triggered on the facts of the case, the mental stress occasioned by the Grievor here would be open to coverage pursuant to the WSIA. In those circumstances, the Grievance Settlement Board would not have jurisdiction to provide damages to the Grievor.

9In regard to the foregoing, Section 26(2) of the WSIA states that entitlement to benefits “under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker may have against the worker’s employer…for or by reason of an accident happening to the worker…while in the employment of the employer.” (see Ontario Public Service Union v. Ontario (Monk et al), 2010 CanLII 28621 (On GSB) (“Monk”), at para. 107. Aff’d, 2012 ONSC 2348 (Ont. Div. Ct.); Aff’d 2013 ONCA 406.

10In addition to the provisions of the WSIA itself, in particular sections 13(4) and 13(5) the WSIB maintained an operational policy manual which amongst other things dealt with traumatic mental stress. During the relevant timeframe that policy dealt with the employment function and the employment function bar as follows:

There is no entitlement for traumatic mental stress caused by an employer’s decisions or actions that are part of the employment function, such as

• terminations

• demotions

• transfers

• discipline

• changes in working hours, or

• changes in productivity expectations

However, workers may be entitled to benefits for traumatic mental stress due to an employer’s decisions or actions that are not part of the employment function, such as violence or threats of violence.

11Due to COVID restrictions counsel were unable to find or rather locate an actual copy of the WSI Board policy from that timeframe. However, the policy outlined above was referred to and quoted in the following decisions of the WSIAT referred to by counsel for the Union:

WSIAT Decision 434/11, 2011 ONWSIAT 664, at para. 14, page 4.

WSIAT Decision No. 221/15, 2015 ONWSIAT 1061, at para. 25.

WSIAT Decision No. 644/14, 2017 ONWSIAT 2601, at para. 15.

12Those WSIB policies guide the Board’s determination on entitlement and are recognized in the legislation such that the WSIAT itself is obliged to consider and apply those policies to appeals that come before it.

13As noted earlier, section 13(4) and 13(5) have since been amended such that the benefits pursuant to the Act have now been extended to workplace mental stress subject to the employment function exclusion which was retained in the legislation. The traumatic mental stress policy with respect to that exclusion was updated in or about January 2, 2018. Although that revision was not in effect during the relevant timeframe with respect to this matter, it was provided by Union counsel and may prove helpful in determining the thinking of the WSIB concerning the meaning and application of the employment function exclusion in the legislation which itself has not been changed in any substantive way by the 2018 legislative amendments.

14That amended policy provides as follows:

Employer’s Decisions or Actions Relating to Employment

There is no entitlement for traumatic mental stress caused by an employer’s decisions or actions that are part of the employment function, such as

• terminations

• demotions

• transfers

• discipline

• changes in working hours, or

• changes in productivity expectations.

However, workers may be entitled to benefits for traumatic mental stress due to an employer’s decisions or actions that are not part of the employment function, such as

• Violence or threats of violence, or

• Conduct that a reasonable person would perceive as egregious or abusive.

Application date

This policy applies to all accidents on or after January 1, 2018. This policy also applies to the claims identified in the “Transitional provisions” section, below.

Transitional provisions

New claims (accidents on or after April 29, 2014)

If a worker has traumatic mental stress which occurs on or after April 29, 2014, and the worker has not filed a claim with the WSIB for the traumatic mental stress before January 1, 2018, the worker or the worker’s survivor may file a claim for the traumatic mental stress with the WSIB, as long as such a claim is filed on or before July 1, 2018.

15The transitional provisions provide coverage for a worker with respect to traumatic mental stress which occurred on or after April 29, 2014. Of course, issues before me with respect to the Grievor WA relate to events which occurred in 2013, that is, prior to the April 29, 2014 cut-off date. Accordingly, the new version of the WSIB Policy was not in effect during the relevant timeframe before me. It is interesting to note that there is in the new Policy a revision to those “employers” decisions or actions that are not part of the employment function” and that addition reads as follows:

Conduct that a reasonable person would perceive as egregious or abusive.

16As indicated, while this addition did not form and does not form part of the Policy before me relevant to the application of the employment function exclusion, it may provide some insight into the thinking of the WSIAT going forward and perhaps in hindsight, with respect to the thinking of the WSIAT concerning the meaning and application of the employment function bar in its earlier decisions.

The Background Facts

17In my arbitration decision of December 8, 2017 I reported that the Grievor WA, had been slapped in the face several times and racially slurred by a co-worker in an off duty encounter at a bar located near the correctional facility at which the perpetrator and the Grievor both worked. The Grievor promptly reported the incident to his then superintendent at the Facility, however, the employer delayed several months before taking any action first in terms of investigating the matter and subsequently with respect to implementing any program to ensure the Grievor would not encounter or be exposed to his assailant in the workplace.

18The parties then agreed that the grievance before me related not to the incident in the bar itself but to the employer’s delay in taking action and the consequences of its having failed to act swiftly and adequately to provide the Grievor with a safe work environment. The Parties’ collective agreement (Article 9.1) reflects the employer’s occupational health and safety act responsibilities such that the employer’s delay had been excessive in particular in failing to ensure the separation of the perpetrator from the Grievor in a more timely fashion. In the circumstances I found that the employer had breached the collective agreement and allowed the grievance.

19By way of remedy I provided declaratory relief as well as several detailed workplace safeguards for the Grievor going forward. However, the Union in the arbitration had claimed monetary damages for the mental stress suffered by the Grievor with respect to the employer’s unreasonable delay in acting upon the March 26th, 2013 incident concerning which the Grievor had provided a detailed report on March 29th.

20Notwithstanding my findings in that award concerning the employer’s failures and violation of the collective agreement, I was then of the view that monetary damages for the Grievor’s mental stress occasioned in the circumstances was compensable pursuant to the WSI Act of Ontario. I therefore concluded, with regret, that I could not provide him with monetary damages. However, in coming to that conclusion, I was not directed nor did I have the benefit of counsel’s submissions concerning the application of the employment function exclusion set out in the WSI Act of Ontario.

21In the circumstances, it was the Divisional Court’s decision that that issue should be referred back to me for proper consideration taking into account relevant jurisprudence. As the Divisional Court stated in its decision at paragraph 11: “If this is done, then the GSB will have an opportunity to analyze the case law fully and decide whether the exclusion does or does not apply. In this way, if the matter is pursued further, any Court on Judicial Review will have the benefit of the GSB’s full analysis of the issue. In our view, this request is an appropriate one. Thus, there is no need for this Court to conduct a fulsome analysis of the issue”.

22And at paragraph 12: “For these reasons, we are allowing the application and remitting the matter to the same GSB arbitrator for redetermination on the issue of whether the employment function mental stress exclusion applies.”

The Parties Submissions

The Union

23Central to the Union’s position as presented by Counsel, Christopher Bryden, is the premise that the “employment function” includes not just “legitimate” management actions as contended by the employer here, but also decisions or actions of management which might be considered or determined to have been inappropriate or improper or a breach of the collective agreement or some statute. Mental stress injuries suffered by workers due to actions of the Employer of that nature are barred from coverage under the WSI Act.

24Consistent with that position is the Union’s view and argument that the Divisional Court at paragraph 10 of its decision reviewing the WA Arbitration Award determined that the WSI Act itself does not include the term “legitimate” in describing the employment function bar. In support of that argument the Union relies on the following extract from paragraph 10 of the Divisional Court decision which reads as follows:

The Respondent also argues that, given the findings of the GSB that the employer conducted a negligent investigation and created a poisoned work environment, it is clear from the caselaw that the employment function exclusion does not apply as that exclusion only protects legitimate employer actions. The Applicant makes the opposite argument, stating that the concept of legitimacy is not part of the statute, and the only question to ask is whether the function at issue is a normal employer function (in this case to investigate an allegation of workplace harassment). To do otherwise would be to introduce the concept of fault into what is designed to be a no fault worker’s benefits scheme.

25However, I disagree with the Union’s view that the Court had endorsed the Union’s position in that paragraph. Rather, it is clear that the Court was simply setting out the respective positions of the Employer Respondent and the Union Applicant. Rather than agreeing with either submission the Court decided to refer the matter back to the Grievance Settlement Board to “analyze the caselaw fully and decide whether the exclusion does or does not apply”. Clearly, the Divisional Court made no decision and arrived at no conclusion regarding the positions taken by the Applicant and/or the Respondent nor did it determine that the term legitimate was inappropriate as a basis for distinguishing between actions of the employer which fell within or without the employer function bar.

26Be that as it may, I myself do not endorse “legitimacy” as the only type of employer conduct or action which is contemplated to fall within the employer function exclusion. Indeed, if that were the case, the very inclusion of employer actions to discipline or terminate an employee which are later found through adjudication to be wrongful or unjust and therefore not legitimate would be anomalous and inconsistent with the legislative provision itself. I will, of course, deal more fully with that proposition and other actions and decisions of the employer in my analysis of the caselaw later in this award.

27Similarly, while I am unable to agree with the employer’s hypothesis that the type of employer functions targeted in the provision are simply those that are “legitimate”, neither am I able to agree with the proposition that the only room for anything similar to a fault based analysis is a consideration of whether the impugned management conduct involved violence or threats of violence. That proposition would truncate the words of the policy itself which actually reads “such as violence or threats of violence”. Clearly, the policy invites a broader consideration of fault or illegitimate conduct of the employer than simply that of “violence or threats of violence”. The question here is whether the policy then in effect was broad enough to encompass the faulty conduct of the employer in the case of this Grievor.

28In effect and notwithstanding the premise that Workers’ Compensation legislation is intended to provide no fault coverage for work related injuries, the employment function bar itself and the WSIB Policy with regard to the employment function introduces the concept of fault-based conduct in this narrow area, that is, as exceptions to the employment function. More precisely, in the words of the relevant WSIB Policy “workers may be entitled to benefits for traumatic mental stress due to an employer’s decisions or actions that are not part of the employment function such as violence or threats of violence”.

29The issue then to be considered in relevant jurisprudence is what type of employer fault based conduct, if any, aside from “violence or threats of violence” has been determined serious or dramatic enough in nature to not be “part of the employment function”. Then, does the employer conduct in the immediate facts fall outside or inside that employment function?

30In the circumstances, the facts as found in my original arbitration decision must be considered in the context of that central legal issue which is whether or not the impugned conduct of the employer meets or fails to meet the criteria for the employment function as revealed in the caselaw relevant to that issue. The factual background as determined in my original arbitration award clarified that the impugned conduct was not the precipitating incident itself during which the Grievor was physically and racially abused by a co-worker while attending an employment related gathering away from the work premises. Rather, as indicated at paragraphs 39 and 40 of my decision, I made the following findings:

The Grievor here, WA, did not suffer from a traumatic event at work. Rather, the remedy claimed by the union here flows from the employer’s “decisions or actions related to the worker’s employment…”. In this case, it was the employer’s inaction and delay in responding to the Grievor’s plight such that he was obliged to work and continue to work in what for him was a poisoned work environment.

31In view of that factual determination I clarified my finding with respect to the employer’s impugned conduct at paragraph 50 as follows:

In the circumstances, I find that there existed for the Grievor a poisoned work environment which was perpetuated due to management’s delay in addressing the concerns raised by the Grievor in his March 29, 2013 report and in subsequent meetings with the employer. I declare that the employer failed in its obligations to ensure a safe work environment for him and contributed in the perpetuation of that poisoned atmosphere.

32In support of its position that the employer’s impugned conduct fell within the employment function bar the Union referred to numerous cases decided by WSIAT including the following:

WSIAT Decision 434/11, 2011 ONWSIAT 664, at para. 14, page 4.

WSIAT Decision No. 221/15, 2015 ONWSIAT 1061, at para. 25.

Additionally, Union Counsel, Christopher Bryden, submitted that the WSIAT has consistently held that the employment function includes the manner in which an employer conducts workplace investigations, and that mental stress arising from such investigations is therefore not compensable under the WSIA.

WSIAT Decision #1791/12, 2013 ONWSIAT 2277, at paras. 33-34. Union Book of Authorities, Tab 24.

WSIAT Decision #2001/11, 2011 ONWSIAT 2581, at para. 26. Union Book of Authorities, Tab 25.

WSIAT Decision #221/15, 2015 ONWSIAT 1061, at paras. 48, 50. Union Book of Authorities, Tab 22.

WSIAT Decision #570/09, 2009 ONWSIAT 829, at paras. 28-29. Union Book of Authorities, Tab 27.

WSIAT Decision No. 644/14, 2017 ONWSIAT 2601, at para. 37. Union Book of Authorities, Tab 23.

WSIAT Decision No. 434/11, 2011 ONWSIAT 664, at paras. 22-24. Union Book of Authorities, Tab 21.

WSIAT Decision No. 715/11, 2014 ONWSIAT 1635, at para. 42. Union Book of Authorities, Tab 27,

Henderson v. Nova Scotia (Workers’ Compensation Appeals Tribunal) 2018 NSCA 59, at paras. 80-81, 86. Union Book of Authorities, Tab 28.

33Within that group of decisions is WSIAT Decision No. 434/11, 2011 ONWSIAT 664 which was cited earlier in this award for its description of the then Board policy related to the employment function. In that case, the facts indicated that a resident under the worker’s care had complained that the worker had grabbed her hand while she was being assisted with changing into her nightgown. Central to the worker’s claim as found by the Tribunal was her mental stress precipitated by the actions and statements of management in dealing with the resident’s complaint rather than her stress as a reaction to the incident itself. At paragraph 8 of its decision the Tribunal set out the worker’s concerns following the incident as follows:

The worker stated that the resident also filed a complaint that was addressed by two managers, who called the worker at home a few days later. She was also required to meet with the managers who indicated the matter was to be investigated. She stated that she was threatened with suspension and loss of her job over the allegation and her alleged refusal to assist the resident again. She stated she did not feel safe to attend the resident again on her own. She stated she felt very scared and found it difficult to discuss the matter.

34It will be seen that the worker’s concern there and claim for benefits under the WSIA was similar to the issue now before me. The question was whether or not the mental stress suffered by the worker was a reaction to management conduct which could be considered part of the “employment function”. In that case, if within the employment function, the worker would not qualify for benefits under the Act. That is essentially the position taken by the Union before me.

35In dealing with the worker’s claim, the Tribunal addressed two issues, one being whether or not there had been a traumatic event and the other, relevant here, whether or not the employment function bar applied in that case. At paragraphs 21 through 23 of its decision the Tribunal reasoned as follows:

In this case, the workers’ own testimony noted that there was never any physical contact between her and the resident in question that could have even remotely been considered aggressive or that would have produced an objectively traumatic response. According to the worker, it was the grabbing allegation and the actions and statements of management in dealing with the complaint that was at the root of her reaction. As such, the incident that was alleged was not of the nature considered under the policy, in that the worker did not for example witness a fatality or become the subject of harassment that was physically or life threatening.

Rather, the worker was subjected to an employment related complaint, which she obviously took seriously. That complaint was in regard to what we viewed as a serious but not suddenly or objectively traumatic incident. She was accused of simply grabbing a resident without any residual harm to the resident. That allegation was not supported according to the file information and above testimony. Further, we viewed the actions of the employer in addressing the allegation to be specifically excluded under the Act and above policy. They were actions and decisions made in regard to the worker’s conduct and whether or not she may be disciplined or a change made in her work conditions. As noted, benefits are not provided for stress related to such actions or decisions.

This is not to say that there was not a difficult exchange between the worker and management when the matter was reported and investigated. The worker also had further difficulties with how she was to perform her work, and deal with residents. It was in brief, the manner of how the employer dealt with the matter that was evidently the source of the worker’s difficulties and subsequent emotional reaction. Again, we were of the view that those matters remained squarely within the rubric of the employment function. In our view, there was no objective harassment or physical threat despite the subjective perception of the worker that she was being threatened.

36The Tribunal determined that management’s impugned conduct which the worker had described as including threats of suspension and the loss of her job together with a responsibility to attend again on the resident were, nonetheless, matters which “remain squarely within rubric of the employment function”. Further and equally important for purposes of the matter presently before me was the Tribunal’s statement that “there was no objective harassment or physical threat despite the subjective perception of the worker that she was being threatened”. There was a suggestion in that statement that in addition to a physical threat as identified in the Board Policy, the Tribunal considered that “objective harassment” might itself have brought management’s conduct outside the rubric of the employment function. However, the facts of that case were not such as to satisfy the Tribunal that the nature of the investigation and the conduct of the employer’s representatives could be considered a form of objective threat or harassment such as to take it outside of the employment function. In the circumstances there, the workers’ claim was declined. In the circumstances before me, the Union argued that the negligence of the employer was even less offensive than the overly-aggressive conduct of the employer representatives before that Tribunal.

37In a later case, the Tribunal in WSIAT Decision No. 644/14, 2017 ONWSIAT 2601, a worker claimed benefits for mental stress flowing from a workplace dispute and the termination of his employment. The worker’s grievance of his termination was successful when it was determined to have been a misunderstanding of a comment made by the worker to his union representative. The representative subsequently reported his mistaken version of the Grievor’s comment to management. That report led to the inappropriate termination of the Grievor’s employment. In dealing with the matter of the worker’s mental stress, the Tribunal commented as follows at paragraphs 33 and 34 of its decision:

The worker’s representative characterized the termination of the worker’s employment as the precipitating event. Board policy explicitly defines employment decisions to include the termination of employment. The Panel finds that the decision to terminate the worker’s employment was an exercise of the employment function that is clearly excluded from the scope of entitlement for mental stress. Correspondence from the employer dated April 23, 2008 states that the worker was dismissed in accordance with the employer’s “zero tolerance” policy for “uttering threats.” In the Panel’s view, the employer was obliged to take such allegations seriously. The Panel is persuaded that the employer dismissed the worker based upon an honest, though mistaken, report of the worker’s comments made by the union representative. This dispute was appropriately resolved through a grievance and reinstatement of the worker’s employment as well as payment of $15,000.00.

The evidence does not support that the dismissal was motivated by malicious intent or improper motives that would take it outside of the scope of the employment function. The Panel finds that the worker’s angry tone with the union representative likely contributed to the misunderstanding. Furthermore, it is important to recognize that the argument with the union representative leading to the misunderstanding stemmed from an employment decision about the nature of the worker’s job assignment.

38As indicated earlier in my award it was my view that a wrongful termination would fall within the rubric of the employment function as set out in section 13(5) of the legislation itself as well as within the policy as it stood in the timeframe relevant to the matter before me. This decision of the Tribunal confirms that view but also indicates that if “the dismissal was motivated by malicious intent or improper motives” the Tribunal was of the view that those findings would have taken it “outside of the scope of the employment function”. There was no finding of malicious intent or improper motives in the case before me. Accordingly, it was the Union’s consistent position that the employment function was satisfied.

39Earlier, in WSIAT Decision No. 620/08, 2008, ONWSIAT 768 the Tribunal considered a situation in which a supervisor had dealt with a worker in a manner that was “rude, disrespectful and certainly inappropriate”. In addressing the facts of that case the Tribunal focused on the 5th bullet in para. 9 which was among the numerous stressful incidents identified by the worker:

On September 26, 2002, the worker said that his supervisor threatened him with more investigations and demerits if he did not perform to his work performance value. This outburst was prompted by the worker asking for some documentation that he was entitled to. His supervisor began to criticize his performance. He said that the supervisor was inches from his nose with clenched fist and teeth in the doorway of his office and angrily stated “Don’t push me! Don’t push me!” There were two witnesses to this event. This apparently was similar to an incident in March 1992. He grieved the “verbal and physical harassment”. He wrote to the Vice President of Human Resources regarding the harassing nature of this incident who indicated that he would not respond noting the grievance. The claim record shows that the demerit was eventually reduced to 5 demerits through the grievance process.

40Before addressing the employment function issue the Tribunal considered and applied the then policy with respect to s.13(4) and the 1st sentence of s.13(5). Although I have previously determined not to apply those provisions in this matter, the WSIAT comments at para. 48 and 49 addressing an earlier Tribunal decision are instructive with respect to harassment of a worker based upon the overzealous scrutiny of a supervisor:

48 We agree with Decision No. 205603 as to its statement that traumatic events listed in the policy document should not be considered exhaustive, and that there are other types of traumatic events beyond those listed in the document, which could attract entitlement. We also agree that traumatic events which could attract entitlement under the policy need not necessarily be “life threatening”. In our view, however, “overzealous scrutiny” by a supervisor, in the absence of some other extraordinary or mitigating circumstances, should not be the basis of entitlement to benefits for traumatic mental stress.

49 We come to this conclusion for two reasons. First, as we have stated above, we consider the list of examples of traumatic events which attract entitlement to be instructive, if not exhaustive. Trauma that is experienced as a result of overzealous scrutiny by a supervisor is, in our view, qualitatively different from the traumatic events listed as examples of cases of entitlement to a significant extent. If the list of examples is to be considered instructive to any significant degree, in our view, it does exclude from entitlement cases where there is simply overzealous scrutiny of work by a supervisor, without any other extraordinary or mitigating circumstances.

41Having determined that the supervisor’s conduct during the incident in question not to have been “objectively traumatic within the meaning of the policy document”, the Tribunal went on to express its view regarding the application of the employment function bar to the facts there at paragraph 50 and 51 as follows:

50 We also conclude that cases of overzealous scrutiny by a supervisor, in the absence of some other extraordinary circumstances, should not be the basis of entitlement to benefits for traumatic mental stress in light of the portion of the policy document which states that “there is no entitlement for traumatic mental stress due to an employer’s decisions or actions that are part of the employment function, such as…discipline.”

51 In our view, although it appears probable to us that the manner in which the worker was treated by P.K. was at times rude, disrespectful and certainly inappropriate, there is not sufficient evidence to allow us to conclude that the treatment afforded to the worker by P.K. was so egregious as to be considered outside of the employment function. Although we consider P.K.’s management techniques to have been inappropriate, we are not able to conclude on a balance of probabilities that they were intended for a general purpose other than that of increasing the worker’s productivity. We believe that every case of this type should be considered on its own merits, to determine whether extraordinary circumstances exist which should cause the decision-maker to conclude that a supervisor exceeded the boundaries of the employment function.

42Mr. Bryden argued that the employer’s delay in responding to the Grievor’s predicament in the case before me and which I characterized as negligence which contributed to a poisoned work environment for him was far less “egregious” than the treatment experienced by the worker at the hands of this supervisor in that case. Further, the facts before me are not so extraordinary as to take the situation experienced by the Grievor outside the employment function. Accordingly, it is doubtful that the WSIAT would make benefits available to the Grievor pursuant to the WSIA. I should, therefore, find that I do have jurisdiction to provide monetary relief to the Grievor on the facts found. The determination of the amount of those damages should be remitted to the Parties for settlement failing which I should remain seized to resolve that issue.

The Employer

43Employer Counsel, Suneel Bahal and Braden MacLean, confirmed that the purpose of the WSI Act is to provide a type of no fault insurance making benefits available to workers for injuries suffered while in the course of their employment. The program requires premiums for those benefits to be paid by the employer. In return the employer is insulated from legal claims and actions which might otherwise be available to those workers. That is the traditional “trade-off” which was also referred to by the Union and identified in the Authorities cited earlier in this award. In the circumstances where such a claim is available to workers pursuant to the WSIAT, this Grievance Settlement Board has no jurisdiction to award monetary damages. To clarify, the WSI Board has exclusive jurisdiction to determine a worker’s entitlement to monetary compensation for such injuries. Where it appears that a worker is entitled to make such a claim this Grievance Settlement Board defers any award for monetary compensation to the no fault coverage available pursuant to the WSIAT.

44There is no dispute between the parties that claims for mental stress injuries are compensable pursuant to the WSI during the relevant timeframe. Indeed, the parties did not disagree that the restrictions in section 13(4) and 13(5) restricting compensation for mental stress injuries were considered unconstitutional by the WSIAT. Accordingly, the Tribunal determined that it was inappropriate to apply those restrictions to matters before it except in circumstances where the injury was caused by employers’ 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 or her employment”. That is, there was no dispute between them that the employment function bar or exclusion would apply to the availability of benefits for mental stress injuries suffered by workers caused by the employer.

45In the circumstances, I confirm that the restrictions in the WSI Act regarding mental stress injuries in sections 13(4) and 13(5) ought not to be applied in the case before me. Furthermore, I confirm that the second sentence of section 13(5) setting out the terms of the employment function bar was not identified as unconstitutional and ought therefore to be considered in determining whether or not the worker’s mental stress injury was caused by management conduct falling within the meaning of the “employment function” as set out in that provision of section 13(5) and elaborated on in the WSI Board policy at the time.

46During the WA proceedings, jurisprudence with respect to the meaning of the employment function exclusion was not identified and argued before me and it is that aspect of the case which is now specifically at issue.

47Here, as indicated, the Parties are not in disagreement with respect to the availability to employees of compensation for mental stress injuries suffered at work. The dispute between them centres upon the meaning and application of employment function exclusion or bar to the facts before me.

48For the employer, Mr. Bahal argued that as an Arbitrator for the Grievance Settlement Board, jurisprudence relating to the availability of benefits for mental stress pursuant to the WSIA should take into consideration and, indeed, follow relevant past decisions of this Board concerning the same issue. The precedential value of prior cases for this Board was identified in the watershed “Blake” decision (see ATU Blake et al v. Ontario (TATO) GSB No. 1276/87). In that seminal decision then GSB Chair, Owen Shime, held that only in exceptional circumstances should one Panel of the Board overrule another. At pages 8 and 9 arbitrator Shime reasoned as follows:

But the Grievance Settlement Board is one entity – it is not a series of separately constituted boards of arbitration. Under Section 20(1) of The Crown Employees Collective Bargaining Act there is “a Grievance Settlement Board” – that is, one Board. Under Section 20(4) the Grievance Settlement Board may sit in two panels and under Section 20(6) a decision of the majority of a panel is “the decision” of the Grievance Settlement Board.

Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load.

We are mindful, however, that there is no provision for appeal and there are limits to judicial review. While it is our view that the “manifest error” theory is too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might to be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances.

49Taking that premise into consideration as well as those WSIAT decisions asserting that it would no longer apply sections 13(4) and the first provision in section 13(5) disentitling worker claimants from WSIA benefits for mental stress, Mr. Bahal argued that the Grievance Settlement Board decisions followed suit. In the circumstances he argued that where the substance of a Grievor’s claim before the Grievance Settlement Board was “work related chronic mental stress”, this Board regularly found that such claims would be compensable under the WSIA and not, therefore, available for monetary relief at the Grievance Settlement Board.

50In making those submissions Mr. Bahal referred to the following authorities:

Re OPSEU and Ontario Ministry of Community Safety and Correctional Services (Rosati), 2018 CarswellOnt 1017, [2018] O.G.S.B.A. No. 7, 134 C.L.A.S. 94 (Anderson).

Re OPSEU and Ontario (Ministry of Community Safety and Correctional Services) (Patterson), 2017 CarswellOnt 4268, [2017] O.G.S.B.A. No. 32 (Briggs).

Re AMAPCEO and Ontario (Ministry of Natural Resources and Forestry) (Wilson), 2017 CarswellOnt 14976, 133 C.L.A.A. 19 (Dissanayake).

Re OPSEU and Ontario (Ministry of Community Safety and Correctional Services (Foley), 2018 CarswellOnt 19823, GSB# 2015-3339 (Williamson).

Re (Khan), OPSEU vs. The Crown in Right of (Ontario Ministry of the Attorney General) GSB #2018-3413, March 23, 2020, CanLII 32582 (Hewat).

51Of those authorities, both the Patterson and Wilson decisions predated my award in WA. In particular, Mr. Bahal points to the Patterson decision as precedential with respect to the proposition that what the Grievance Settlement Board does not have is the jurisdiction to make a monetary award for mental stress which, if proven, arises out of the actions in the workplace of a co-worker and/or the alleged failure of the employer to protect the worker within the workplace. Jurisdiction to make any such monetary award resides with the authorities administering the Workplace Safety Insurance Act.

52However, the Patterson decision was reviewed by the Divisional Court (see Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services, 2019 CarsOnt 2443, 2019 ONSC 1077). That Court did not overturn the Grievance Settlement Board decision, finding as it did that the Board’s conclusion was not unreasonable. However, it was careful to point out that the two issues raised there by the union had not been presented or argued before this Board. One of those two issues was the consideration of the employment function exclusion. In the circumstances, the Court decided that it would not consider the implications of the employment function bar which the Court noted “requires an assessment of the facts of the case to determine whether the bar would likely apply”. In determining that it would not address those two issues and in particular that relating to the employment function bar, the Court reasoned as follows at paragraphs 17 through 21 of its decision:

The New Arguments

17. The Employer submits that this Court should not address arguments that were not raised before the Board, but are now put forward on the application for judicial review as grounds to find the Board’s decision unreasonable. In particular, the issues of the employment function bar in WSIA and the primacy of the OHSA are raised for the first time on this application for judicial review.

18. A court on judicial review of a decision of an administrative tribunal has discretion to refuse to determine issues that were not raised before the tribunal (A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 (S.C.C.) at para. 22). If the issue could have been raised before the tribunal, courts will generally find it inappropriate to deal with the issue on judicial review (at para. 23).

19. In the present case, both of these issues could have been raised before the Board. Indeed, the employment function bar was raised before another Board Vice-Chair and discussed in OPSEU and Ontario (Ministry of Community Safety and Correctional Services) (Rosati), Re, 2018 CarswellOnt 1017 (Ont. Grievance S.B.) at paras. 11-12. Moreover, a determination of the impact of the employment function bar requires an assessment of the facts of the case to determine whether the bar would likely apply. The Court, on review, would benefit from the Board’s determination of this issue given its expertise in labour relations and employment matters.

20. With respect to the primacy clause of the OHSA and its impact on the Board’s jurisdiction to award damages, this is also an issue that could have been raised before the Board. The primacy clause, s. 2(2) provides that “[d]espite anything in any general of special Act, the provisions of this Act and the regulations prevail.” The Union’s argument that OHSA is quasi-constitutional legislation appears to be novel, and no authority is cited. Again, the Court would benefit from the Board’s consideration of questions such as whether there is a conflict between the OHSA and WSIA and whether there is a right to damages for violation of OHSA.

21. Accordingly, I will not consider these two issues, raised for the first time before the Court on this application for judicial review.

53Although the Court determined that it would not address the question of the employment function bar newly raised before it, it noted in that decision as it did in its review of my earlier decision here that “the Court, on review, would benefit from the Board’s determination of this issue, given its expertise in labour relations and employment matters”. That is the same basis upon which the Court referred the present matter back to myself for consideration. It should be noted that the Court then had before it the Rosati decision of arbitrator Anderson (supra) in spite of the consideration of the employment function exception in that case. By implication and indeed the union here later argued that, the decision in the Rosati matter did not take into consideration WSIAT jurisprudence respecting the employment function bar.

54In any event, the Court went on to express its views with respect to the merits of the issue that was properly before it. In addressing that matter, the Court restricted its decision to assessing the reasonableness of the Grievance Settlement Board’s determination in the Patterson case taking into consideration two other decisions of this Board relied upon here by the employer as follows:

26. It was reasonable for the Board to conclude that the WSIAT would continue to treat the acute mental stress limitation as unconstitutional in future cases, and that the type of injury alleged by the grievor would be compensable under the WSIA. Indeed, that was the conclusion reached by two other Vice-Chairs of the Board in subsequent decisions. In AMAPCEO and Ontario (Ministry of Natural Resources and Forestry) (Wilson), Re, 2017 CarswellOnt 14976 (Ont. Grievance S.B.), the Vice-Chair stated (at para 27),

The reality is that the sort of illness, if proven, would have been compensable. It would not be appropriate for this Board to ignore the reality that the Tribunal charged with enforcing and applying the statute has made it clear that it would not be enforcing or applying the provisions which otherwise would have prevented the complainant from seeking benefits.

See, also, OPSEU and Ontario (Ministry of Community Safety and Correctional Services) (Foley), Re, 2018 CarswellOnt 19823 (Ont. Grievance S.B.) at paras. 26-27.

27. In my view, the Board’s decision in the present case was reasonable. The Board applied the principles from Monk, and the decision is consistent with other Board decisions. The Board was required to look at the substance of the claim (Monk at para. 5), and it did so, reasonably concluding that the claim was for compensation for a workplace injury of a type that would be compensable under the WSIA.

55In the result, while the Court did not set aside the Patterson decision for failing to consider the implications of the employment function exclusion, neither did it conclude that the Patterson award properly considered that bar and its implications with respect to the facts which had been before the original GSB arbitrator. In the circumstances, I am not satisfied that it would be appropriate to blindly endorse the determinations in those several Grievance Settlement Board decisions without a thorough consideration of the appropriate WSIAT authorities respecting the implications of the employment function exception to the facts of the matter originally before me. Indeed, it is my view that it would be inappropriate to follow those cases pursuant to the principle annunciated in the Blake award (supra). Further, as the union argued here, Blake “did not intend to encourage the perpetuation of a result which is reached in the absence of a consideration of relevant legal authorities”. (See Re OPSEU (Johnston), GSB #2019/1147 (August 2, 2011), (Dissanayake)), at paragraph 15.

56While the Board’s decision in Patterson did not address the WSIAT authorities with respect to the employment function bar, neither were those authorities before arbitrator Anderson who did rule with respect to the applicability of that exception in the Rosati matter before him. To do so, the arbitrator fashioned a test to determine the applicability of the employment function bar to the matter then before him. Regrettably, the facts there were not detailed in the award save for a characterization of the actions of an employer representative as “harassment and discrimination” resulting in mental stress at the hands of the worker’s employer.

57Arbitrator Anderson first determined that it was doubtful that any then current WSIAT tribunal would consider applying the apparently unconstitutional provisions of the Act which purport to disentitle benefits to workers in cases involving mental stress issues. He went on to consider the second argument addressed by the union which specifically related to the employment function exception at paragraphs 8 to 12 as follows:

8. This 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.

9. Counsel 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.

10. As with the (employer’s) 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).

11. Counsel 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 decision 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.

12. In 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.

58In effect, there is in Rosati a determination that the harassment and discrimination perpetrated by the employer, subject to any later determination by the WSIAT, was outside the employment function since that conduct was not “the kinds of actions and decisions which a worker might reasonably expect an employer might make in relation to their employment…on the contrary, they are prohibited acts”. In my view, while the ultimate result in that award might be appropriate, that is that the worker would be entitled to benefits provided in the WSIA, there are two difficulties in the decision which make it troublesome with respect to any precedential value:

1. As indicated earlier, there are insufficient details concerning the facts leading to the finding of harassment and discrimination suffered by the worker to rely upon it as precedential with respect to the employer conduct there falling outside the “ employment function”. Since those facts were not detailed in the Award and examined within the context of the WSI Board Policy and WSIAT jurisprudence, it is unclear whether or not the harassment and discrimination were sufficiently extraordinary to take the matter beyond the meaning of the employment function. Indeed the Policy itself is neither cited nor referred to in that decision.

2. The test devised in the award referring to the reasonable expectations of an employee seems to differ little from that argued by the employer counsel here. More precisely, including only legitimate acts of the employer within the employer function as opposed to excluding from it all those which are “prohibited acts” as characterized by arbitrator Anderson would seem to be equivalent tests.

59In the circumstances, it is my view that I would be remiss in deciding the instant case on the basis only of the decision in Rosati since my mandate and that of counsel was to consider the existing jurisprudence dealing with the employment function bar.

60Accordingly, while I agree with the decision that it is not “any” action of the employer which can be characterized as within the employment function, it is my view that not all “prohibited acts” fall outside the employment function. Rather, according to the WSIA Board policy only, employer decisions and actions “such as violence or threats of violence” fall outside the employment function.

61In the Khan decision (supra), arbitrator Hewat did not have the benefit of the Divisional Court decision in the matter presently before me when she considered and followed the Foley award. Indeed in Khan as well as in Foley, the arbitrators did not have before them the WSIAT authorities or the WSIB policy relating to the employment function bar. More importantly, in Khan the parties agreed 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”. The Union before me has not made such a concession. Rather, it has consistently argued that the Grievor before me would have no claim for benefits under the WSIA Act since any such claim would be barred as a consequence of the employment function.

62Accordingly, having considered those Grievance Settlement Board authorities referred to by the employer, I am not satisfied of their precedential value with respect to the principles enunciated in the Blake decision.

The Decision

63Having considered the authorities referred to by counsel, the legislation itself and the relevant WSIB Policy, it is my view (subject to any subsequent decision of the WSIAT) that the Grievor, WA, before me would not be entitled to the benefits of the WSIA for the mental stress he suffered since that injury was a result of the conduct of the Employer falling within the meaning of the employment function as addressed and considered in the WSIAT jurisprudence. My reasons for that finding are set out in detail below.

64As already stated, I am not persuaded that it would be appropriate here to apply the Blake principle to the GSB cases referred to by counsel. Specifically, the arbitrators in those cases did not have before them the benefit of the WSI Board Policy with respect to the employer function bar nor was the WSIAT jurisprudence explored with them. It is, in part, for that reason that the Divisional Court has referred this matter back to the GSB for reconsideration.

65In the circumstances, it is open to me to consider the relevant WSIAT jurisprudence, regarding the employment function exclusion. My review of the numerous decisions provided by Counsel indicate that:

1. the employment function itself has been very broadly construed by the WSIAT, it has been found to include for instance:

a) rude, disrespectful and inappropriate behaviour towards a worker by a supervisor (WSIAT Decision No. 620/08, supra)

b) management threats to a worker of suspension and/or job loss (WSIAT Decision No. 434/11, supra)

c) and even wrongful termination (WSIAT Decision No. 644/14, supra)

2. Notwithstanding the apparent breadth of the WSIAT views regarding the employer function, there are indications in those decisions, even before the 2018 amendments to the legislation, that exceptions from the employment function are not to be so narrowly construed as to include only ”violence or threats of violence”. Indeed, the policy itself provides that conduct “such as” or of a similar nature is also to be excepted from the employment function.

3. In the cases I have specifically reviewed in this award, the WSIAT has suggested or implied that exceptions from the employment function may pertain where the employer conduct demonstrates:

a) objective harassment, whereas threats of suspension or job loss did not qualify (WSIAT Decision No. 434/11)

b) malicious intent or improper motives, whereas wrongful termination based on a misunderstanding did not qualify (WSIAT Decision No. 644/14)

c) actions “so egregious as to be considered outside of the employment function”, whereas a rude supervisor did not qualify (WSIAT Decision No. 620/08)

66It is interesting to observe that since the amendments to the WSIA in 2018, there has been added to the Policy exceptions from the employment function conduct that not only involve violence or threats of violence but also egregious or abusive conduct. Those additions appear to be reflective of the comments of the WSIAT in the examples noted above.

67Notwithstanding those expressions of possible exceptions from the employment function, in none of the WSIAT decisions referred to by Counsel was a single exception found by a WSIAT Tribunal. No worker was found to be insured for a mental stress injury caused by an employer.

68Furthermore, it is clear from those decisions and indeed it seems the view of the Divisional Court that each case must be decided on the details of its own facts. That was made clear in the closing remarks cited above in WSIAT Decision No. 434/08 where the author remarked:

“We believe that every case of this type should be considered on its own merits to determine whether extraordinary circumstances exist which should cause the decision-maker to conclude that a supervisor exceeded the boundaries of the employment function”.

69I have considered the submissions of Counsel, the jurisprudence, the relevant WSI Board Policy and the nature and details of the impugned employer conduct as I found in my original decision. It is my view, and I found, that the employer’s excessive delay in responding to the Grievor’s plight in the workplace was negligent, resulted in and exacerbated what for him was a poisoned work environment from which he suffered mental stress. However, that negligent conduct did not rise to the level of actions “such as violence or threats of violence”. In reference to the WSIAT case law, it could not be considered so egregious, malicious, improperly motivated or extraordinary as to fall outside the “employment function”. Therefore, the Employer’s actions did fall within the meaning of the “employment function”. Accordingly, the employment function exclusion or bar applied to the Grievor’s mental stress injury. Finally, it is my view that he would not be entitled to the insured coverage otherwise available pursuant to the WSI Act.

70In the circumstances, since the Grievor, WA, would not be entitled to WSIA coverage for his mental stress injury, this Board does have jurisdiction to assess monetary damages with respect to that injury pursuant to the health and safety provisions of the Parties’ collective agreement.

71As both Counsel requested and agreed, the assessment of monetary compensation is referred back to the Parties for determination. I remain seized to make that determination in the event the Parties are unable to resolve that issue.