GSB# 2017-0667
UNION# 2017-0201-0007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Adams)
Union
- and -
The Crown in Right of Ontario (Ministry of Health)
Employer
BEFORE
Michael Lynk
Arbitrator
FOR THE UNION
Kamal Bakhazi (Counsel) Koskie Minsky LLP
FOR THE EMPLOYER TELECONFERENCES
Andrew Lynes (Counsel) Treasury Board Secretariat Legal Services Branch May 8, 11, 2018; January 11, Feb 27 and Nov 14, 2019
HEARING DATES
November and December 2019
DECISION
Introduction
1Ms. Teresa Adams filed two grievances in 2017, alleging that her employer did not protect her health and safety while at work. The parties agree that, as a result of a workplace accident which had occurred on or about October 17, 2015, she suffered personal injuries. Following her injuries, Ms. Adams initiated a claim for benefits under the Workplace Safety and Insurance Act, 1997 SO 1997, c. 16, Schedule A, which she was subsequently awarded. In her grievances before the Grievance Settlement Board, Ms. Adams has sought various remedies against her Employer, including a claim of $10,000 in damages for the breach of her statutory and collective agreement right to work in a safe and healthy workplace.
2In response, the Ministry of Health and Long-Term Care, Ms. Adams’ employer, has brought a preliminary motion to strike out this claim for damages. It argues that the Board has no jurisdiction to award monetary and non-monetary remedies for such a workplace injury because these are injuries that are compensable, and have been compensated, under the Workplace Safety and Insurance Act (“WSIA”).
3The Union opposes the motion. It maintains that the Board can award some forms of damages, including monetary damages, in such cases if they address a violation of the right to a safe and healthy workplace and they do not otherwise duplicate, or overlap with, the remedial jurisdiction of the WSIA.
4This decision deals only with the Employer’s preliminary motion.
5The parties have agreed that this decision shall be determined in accordance with Article 22.16 of the Collective Agreement, with brief reasons for the decision.
Facts
6The parties have provided an Agreed Statement of Facts, which is reproduced here:
i. This proceeding concerns health and safety matters at the Hamilton Central [Ambulance] Communication Centre (Hamilton CACC) of the Ministry of Health and Long-Term Care.
ii. The employees in question are all Ambulance Communications Officers (ACO1). Their responsibilities include: processing 9-1-1 emergency and non-emergency requests for ambulance service; directing ambulance movements; providing pre-arrival instructions; communicating with members of the public and operating computer-aided telecommunications equipment.
iii. The Grievors [Rebecca Kirkpatrick and Teresa Adams] are both ACO1s employed at the Hamilton CACC who were injured by electrical shocks while working at their consoles.
iv. Both Grievors made WSIB claims and received benefits for their work-related injuries.
v. Ms. Kirkpatrick filed a grievance on February 10, 2017, which is attached.1
vi. Ms. Adams filed grievances on March 4 and August 31, 2017, which are attached.1
vii. The Union filed a policy grievance and a group grievance on or about January 24, 2017, which are attached.1
viii. The Union filed an Appeal of Inspector’s Order on March 1, 2017. A copy of the Union’s pleadings in that matter is attached.1
ix. The Parties fully resolved the policy grievance, group grievance, and Appeal by Memorandum of Settlement on April 30, 2018. A copy of the Memorandum of Settlement is attached.1
7Ms. Rebecca Kirkpatrick’s grievance is not before this panel of the Board. Only Ms. Adams’ two grievances are before me.
8In her March 4, 2017 grievance, Ms. Adams stated that the Employer had failed to reasonably investigate the workplace injury she suffered in October 2015. In this grievance, she sought various compensatory damages.
9In her subsequent August 31, 2017 grievance, Ms. Adams alleged that the Employer had not conducted a sufficiently thorough investigation of the electric shocks that she had received in October 2015. She maintained that the Employer was requiring her to again use corded headsets at her work console without ensuring that this was a safe process. Among other remedies, she sought damages for injury to her dignity, feelings and self-respect.
10The Union has subsequently clarified that it is seeking three remedial requests arising from Ms. Adams’ grievances:
i. A declaration that the Employer violated the Collective Agreement (particularly Article 9) and/or the Occupational Health and Safety Act by failing to maintain a safe and healthy workplace;
ii. Damages in the amount of $10,000 for breach of the Grievor’s statutory right, and right under the Collective Agreement, to work in a safe and healthy workplace; and
iii. Such further and other relief as the Arbitrator may deem appropriate.
The Union also stated that Ms. Adams had suffered another category of harm, namely the harm of fearing that her workplace was unsafe and that her Employer was not taking adequate precautions to protect her.
11The electric shocks suffered by Ms. Adams and several other workers in October 2015 and afterwards (the last recorded shocks occurred in January 2017) apparently originated from sidewalk construction that was occurring in front of the building which housed the Hamilton Central Ambulance Communications Centre. Ms. Adams stated that she received the shocks – described as audio bursts and electro-static discharges – through her headset and which she felt through her ear. In her grievances, she stated that her injuries were serious.
Arguments
(i) The Employer
12In its preliminary motion to dismiss the union’s claim for $10,000 in damages for Ms. Adams’ injuries, the Employer argued that Ms. Adams had applied for, and received, workers’ compensation benefits under the Ontario WSIA. Consequently, it maintained, this Board is without jurisdiction to award damages arising from compensable workplace injuries.
13The Employer acknowledged that the Board does have the general jurisdiction to award non-monetary remedies in such circumstances. However, it asserted that the Board should dismiss the union’s claim for these other remedies because the electric shocks at issue occurred in 2015, and the last shocks at the Hamilton Central Communications Centre occurred in January 2017. This issue, it submitted, is now moot.
14The heart of the Employer’s argument is grounded in the principles established by the Grievance Settlement Board’s 2010 ruling in Ontario Public Service Employees Union (Monk) v. Ministry of Community Safety and Correctional Services et al, GSB #1995-1694, (Owen Gray, Vice-Chair) (29 April 2010). In Monk, Vice-Chair Gray ruled, in para. 110, 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 [Workers’ Compensation Act] or the WSIA [Workers’ Safety and Insurance Act], whichever applies.
The Employer submitted that this principle applies in full to the claim for compensatory damages by Ms. Adams.
15The union challenged the ruling of the Board in Monk. However, the ruling was subsequently upheld on judicial review by the Ontario Superior Court of Justice, Divisional Court (OPSEU v. Ontario et al, 2012 ONSC 2348). Upon appeal to the Ontario Court of Appeal, the union’s challenge to the Superior Court ruling was dismissed (OPSEU v. Ontario (Community Safety and Correctional Services), 2013 ONCA 406.
16The Employer also relied upon a 2017 ruling by the Grievance Settlement Board which followed and applied the Monk principle: OPSEU (Mohamed) v. Ontario (Ministry of the Attorney General), GSB #2015-3016 (Diane Gee, Vice-Chair) (9 June 2017). In Mohamed, the Board dismissed claims by an employee for compensatory, general and special damages arising out of injuries suffered in the course of his employment, based on Monk.
17As well, the Employer submitted that the issues raised in the grievance are moot. In doing so, it relied upon the precedent established by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342. In Borowski, the Supreme Court established the modern approach in Canada towards the doctrine of mootness. It stated that a legal matter may be determined to be moot if it is not, or is no longer, a ‘live controversy or concrete dispute’. The Court adopted a two-step approach to determining an issue of mootness:
a) Whether the requisite tangible and concrete dispute has disappeared, rendering the issues academic; and, if so,
b) Should the court nevertheless exercise its discretion to hear the matter, with attention paid to the basic factors of whether a true adversarial context exists, whether it is worthwhile to employ scarce judicial resources to adjudicate the matter and whether the intervention of the court on the particular matter would be effective.
18The Employer drew my attention to the fact that the Board had applied the Borowski principle on mootness in OPSEU (Union) v. Ontario Ministry of Community Safety and Correctional Services et al, GSB #2009-2981, (Randi Abramsky, Vice-Chair) (9 August 2010). In this ruling, Vice-Chair Abramsky ruled that the grievance in question was moot because it had no future industrial relations value, and it raised an issue that was no longer a concrete dispute. The Employer urged me to apply this reasoning to the Adams grievance.
19As such, the Employer submitted that I should dismiss the grievance. The Monk principle should prevail in these circumstances with respect to Ms. Adams’ claim for monetary damages, and the Borowski principle on mootness should be applied in these circumstances where the grieved issues are no longer alive.
(ii) The Union
20In its arguments against the Employer’s preliminary motion to dismiss the grievances, the Union submitted that the heart of the two grievances which it filed on behalf of Ms. Adams – determining the root cause of the electrical shocks at the Hamilton CACC – remains unanswered and unresolved. It maintained that the Employer has yet to sufficiently investigate any damage caused to the wiring under the building by the pooling of sewage, a rodent infestation and /or the sidewalk construction project.
21As such, the Union argued that the Employer failed to satisfy its statutory obligations under the Occupational Health and Safety Act (“OHSA”), and specifically, s. 25(2)(h), which requires an employer to:
(h) take every precaution reasonable in the circumstances for the protection of a worker;
22The Union acknowledged that the last recorded incident of electrical shocks at the Hamilton CACC occurred in January 2017, after the employer had moved its CACC employees to a temporary workplace and renovated the original workplace to address the concerns about the electrical shocks. It accepted that there have been no further incidents since then.
23In its submissions, the Union emphasized the impact of the injuries on Ms. Adams, including:
Permanent damages to her facial nerves;
Unable to work between October 2015 and February 2016; and
After returning to work in February 2016, missed various days at work because of lingering injuries.
All of these health and safety consequences, the Union conceded, were compensable under the WSIA.
24However, it submitted that Ms. Adams had suffered another category of injury which was not covered by the WSIA, namely the personal harm caused by the fear that the workplace is unsafe and that the Employer had not taken adequate steps to protect its employees. This was the type of workplace harm that was addressed by Arbitrator Randi Abramsky in Ontario Provincial Police Association v Ontario Provincial Police, 2018 CanLII 82193 (ON LA) (31 August 2018). In her OPP ruling, Arbitrator Abramsky awarded monetary damages of $5,000 to the affected employees for the violation of their right under the Collective Agreement to a healthy and safe work environment. She also found that one of the OPP officers might be entitled to damages to cover violations of his right to a safe and healthy workplace under the Collective Agreement and OHSA that would not be covered by any potential claim the employee might have under the WSIA.
25Accordingly, the Union stated that, if it could prove the facts alleged, it would amount to a breach of the Collective Agreement and OHSA, and remedies for Ms. Adams would then flow from the breach. Therefore, the grievances should be heard on their merits.
26In reply to the Employer’s legal arguments, the Union submitted that the Monk line of cases can be distinguished by the fact that not all monetary damages involving a worker injured at work are outside the jurisprudence of the Board. In Ontario Public Service Employees’ Union (Foley) v. Ministry of Community Safety and Correctional Services, 2018 CanLII 119566 (ON GSB) (19 November 2018), it noted that Arbitrator David Williamson ruled that he had jurisdiction to award a monetary remedy for a proven breach of the Article 9.1 provisions on health and safety in the Collective Agreement, unless it is, in substance, a remedy for a matter that lies within the scope of the WSIA.
27The Union noted that the grievor in Mohamed, supra, was entitled to pursue his grievance for both a declaration that the Employer had breached its health and safety duties under the Collective Agreement, and a declaration that the Employer should take measures to improve the safety of the working environment.
(iii) Employer Reply
28In its reply arguments, the Employer distinguished the caselaw relied upon by the Union from the facts of this present case.
29The Employer submitted that, in Ontario Provincial Police, the employer had breached its own policies, which the Arbitrator found amounted to a breach of the OHSA. In our case, there is no allegation that the Employer violated its own health and safety policies. As well, it maintained that the damages awarded in Ontario Provincial Police were for harms that were not compensable under the WSIA, which is not on all fours with the present facts.
30As well, in response to the Union’s submissions respecting the exceptions to the Monk principle, the Employer drew my attention to the caution expressed by Vice-Chair Gray in Monk, beginning at para. 85, to resist innovative and creative characterizations of liability as a back-door entry point in seeking the awarding of damages which the purpose of the WSIA plainly excludes.
31In Foley, the Employer agreed with the Union that, while Arbitrator Williamson stated that monetary remedies can be awarded by the Grievance Settlement Board for a proven breach of Article 9.1 of the Collective Agreement, they cannot be awarded if they are “in substance, a remedy for a matter inside the jurisdiction of the Workplace Safety and Insurance Act”.
32Finally, the Employer submitted that the approach taken in Ontario Provincial Police is not one followed by the caselaw of the Grievance Settlement Board.
33Subsequent to the oral arguments of the parties, the Employer submitted a more recent decision by Arbitrator Dale Hewat in Ontario Public Service Employees Union (Khan) v. Ministry of the Attorney General, GSB #2018-3413 (9 March 2020). In Khan, Arbitrator Hewat ruled that she had no jurisdiction to award damages and remedies with respect to an employee’s loss of pay and suffering arising out of workplace harassment because such damages are payable through the WSIA. In allowing the employer’s preliminary motion to declare that the Board had no jurisdiction on the claim for remedies and damages, the arbitrator ruled that Foley and Monk were directly on point.
Analysis
34I have carefully considered all of the submissions and the evidence placed before me. I have concluded that the Employer’s preliminary motion to dismiss the two grievances seeking monetary damages filed by Ms. Adams must succeed. As well, I accept the Employer’s further submissions that the remaining claims in the Adams’ grievances are no longer live industrial relations issues and have become moot. In accordance with the practice of issuing decisions under Article 22.16, I am providing brief reasons for my ruling.
(i) The Claim for Monetary Awards
35The parties agree that Ms. Adams suffered workplace injuries arising from the electrical shocks that had occurred at the Hamilton CACC. After her injuries, she subsequently applied for, and received, monetary awards under the WSIA to compensate for these workplace injuries. Through her two grievances, she is seeking monetary damages for the violation of her right to a safe workplace, and for the harm caused to her through her fears that her workplace would continue to be unsafe.
36The principles established by Monk, and followed by Mohamed, Foley and Khan, preclude these grievances from being awarded by the Grievance Settlement Board in this instance. I find that, in substance, the damages and remedies sought by the grievor flow from the same circumstances which generated the monetary remedies under the WSIA.
37In saying this, I am mindful of the comments made by Vice-Chair Gray in Monk, at paras. 85-106, that legal decision-makers who are adjudicating a claim for monetary damages arising out of a workplace injury or illness must anchor their analysis with an appreciation of the historic compromise a century ago which created the workers’ compensation system. In exchange for mandatory employer contributions to a government-administered mechanism which provide compensation to employees for workplace-related injuries and illness on a largely no-fault basis, employers receive statutory protection from liability for these injuries and illnesses. “There is no obvious reason,” he wrote at para. 88, “why the application of this trade-off should depend on the legal theory on which the alleged liability for workplace injury is based.”
38Ms. Adams claims damages in the amount of $10,000 for the breach of her right to work in a safe and healthy workplace. She also claims unspecified damages to compensate for the fear that she developed that her workplace had become unsafe after the experiences in October 2015. Notwithstanding the great sympathy that one has for Ms. Adams because of the nature and the consequences of the injuries she suffered while at work, these injuries are precisely the type of workplace claims that the WSIA is designed to exclusively address and compensate through its no-fault system. The long-standing statutory and jurisprudential principles governing the workers’ compensation system in Ontario preclude, in almost all cases, any collective agreement grievance, tort or other damage claims before workplace tribunals or the courts arising from injuries or diseases acquired in and during the course of the employment relationship. There is no inventive or principled way within the law to reclassify or reimagine the monetary damages and remedies claimed in these grievances as being distinct and separate from the broad statutory authority over workplace injuries and illnesses arising from the WSIA.
39The caselaw at the GSB does allow for specific exceptions to the rule. That is, damages may be awarded if the employee’s loss is related to personal property damage, or expenses or losses incurred to avoid or mitigate a risk to safety or health caused by a violation of the legal duty: Monk, para. 109. These are losses not covered by the WSIA, and therefore can be properly awarded by the Board in the appropriate circumstances. It is my conclusion that neither of the monetary claims advanced by the Union on behalf of Ms. Adams fit within these recognized exceptions.
40I have closely read the caselaw and reflected on the submissions put forth by Union counsel. His submissions are well-constructed, thoughtful and legally imaginative. Ultimately, however, I am not persuaded by them.
41Arbitrator Abramsky’s decision in Ontario Provincial Police awarded damages against the employer for its violation of the rights of the grievors to a safe and healthy workplace as guaranteed by the governing collective agreement. The damages were awarded on the basis that the employer had failed to follow its own workplace policies, which gave rise to the harm suffered by the grievors. However, Arbitrator Abramsky was clear that the grievors would not be entitled to monetary damages which flow from any potential claims that they could have made under the WSIA. Insomuch as I am unable to distinguish, in substance, the monetary claims in Ms. Adams’ grievances regarding the purported breach of the collective agreement from the workplace injuries that she suffered and was compensated for under the WSIA, the ruling in Ontario Provincial Police stands apart from our present case.
42This is, in essence, also the thrust of Arbitrator Williamson’s ruling in Foley and Arbitrator Gee’s decision in Mohamed. At para. 29 of Foley, Arbitrator Williamson stated:
The [Grievance Settlement] Board continues to have jurisdiction, however, to provide a monetary remedy for a proven breach of Art. 9.1 [of the governing collective agreement], 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.
43In Khan, Arbitrator Hewat followed this line of reasoning. She acknowledged that a remedy for a breach of the collective agreement may be available, but it cannot intrude into the remedial territory for a compensable injury or illness available under the WSIA.
44I conclude from these tribunal precedents that a decision-maker must be cautious when considering a monetary remedial claim by a grievor for damages arising from an employer’s purported breach of a collective agreement right to a safe and healthy workplace. To assume jurisdiction in such a health and safety case, the decision-maker must first be satisfied that the grievor’s claim is not one that, at its heart, would arise from a workplace injury or illness which is compensable under the WSIA. There must be evidentiary daylight between the monetary claim and the broad remedial jurisdiction assumed by the WSIA. I do not see that daylight in this case.
(ii) The Claim for a Declaration
45Ms. Adams is also seeking a declaration that the Employer had failed to maintain a safe and healthy workplace. The Employer has argued that the request for this remedy should be found to be moot, and the Board should not assume jurisdiction.
46In these circumstances, the workplace injury to Ms. Adams occurred initially in October 2015, and continued for a period of time afterwards. It is not disputed that the Employer took steps at the time to identify the source of the shocks, to temporarily move the CACC operations to another location while the problem was being addressed, and to renovate the existing workplace to avoid any repetition of the shocks. No further instances of the shocks have been recorded since January 2017.
47As such, I do not see the industrial relations value in litigating the Union’s claim for a declaration that the Employer breached its health and safety obligations under the collective agreement and the Occupational Health and Safety Act. The tangible and concrete issue that did exist between the parties has effectively disappeared. I see no practical effect that issuing such a declaration would have on the rights on the parties. I am not persuaded that these circumstances are such that I should nonetheless exercise my discretion to hear the matter.
48As such, I accept the Employer’s preliminary motion to dismiss the Union’s quest for a Declaration.
Conclusion
49For the reasons stated, I am allowing the Employer’s preliminary motion to dismiss the two grievances filed by the Union on behalf of Ms. Adams.
50I wish to acknowledge the advocacy of Mr. Lynes and Mr. Bakhazi. Their respective clients were well served by their representations and their professionalism.
Dated at Toronto, Ontario this 7^th^ day of September, 2021.