GSB# 2013-3791; 2014-3127; 2015-3003

UNION# 2014-0234-0021; 2014-0234-0452; 2014-0234-0195

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Plouffe)

Union

• and -

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

Employer

BEFORE

Daniel A Harris

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Labour Practice Group Counsel

HEARING

December 15, 2023

Decision

Overview

1This decision is a follow-up to the decision between the Ontario Public Service Employees Union, the union, and the Ministry of the Solicitor General, employer, in the matters of the grievances of Robert Plouffe.

2A decision on the merits in this matter upheld the grievances and made declarations with respect to the treatment of the grievor by members of management, including Mr. Parisotto, the Superintendent of the Maplehurst Correctional Complex at the material times.

3I retained jurisdiction to determine what, if any, further remedies were available to make the grievor whole. The union seeks further remedies in the nature of monetary damages from the employer.

4The employer takes the position that monetary damages are not available to the grievor on the basis that the jurisdiction to award any monetary damages is exclusively that of the Workers’ Safety and Insurance Board (WSIB). The employer brought the instant motion requesting that I reach that conclusion. This decision deals with that request.

5For the reasons set out below, it is my determination that the damages sought are not within the purview of the WSIB. The damages sought are for breaches of the collective agreement and of the duty of care. Accordingly, it is my view that I have the jurisdiction to award such damages as a roster mediator-arbitrator of the Ontario Grievance Settlement Board (GSB).

6Also, to be clear, it should be noted that any claims of breaches of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 have not been put before me, so do not factor into the analysis that follows.

The Facts Relevant to the Employer's Motion

7By a Decision of this Board dated November 22, 2021 (see: OPSEU (Plouffe) and SOLGEN 2021 CanLII 127097 (ON GSB)), the grievances filed on behalf of the grievor, Robert Plouffe, were allowed. Paragraph 293 of the Decision set out the award in the following terms:

The grievor is entitled to a declaration that the Employer failed to provide a workplace free from harassment of and threats of violence to him. That is to say, The Ministry of Community Safety and Correctional Services, through its management employees with responsibility for the Maplehurst Correctional Complex, dealt with the grievor, Rob Plouffe, in a contumacious and continuous abrogation of its duty of care to him and contrary to articles 2 and 9 of the collective agreement between the parties herein from and after December 2013, and I so declare. As agreed between the parties, and set out above, I remain seized of this matter with respect to any other remedies sought, howsoever characterized.

8This matter came back on for hearing on December 15, 2023 by way of a motion of the Employer that is described in its written submissions as follows:

1. It is the Employer’s position that the GSB does not have jurisdiction to award any compensatory damages (including reimbursement for lost time and general and specific damages) because the Grievor had applied for, and received, workers’ compensation benefits under the Workplace Safety and Insurance Act, 1997 (WSIA). Consequently, it maintains, this Board is without jurisdiction to award damages arising from compensable workplace injuries.

2. The Employer accepts that the GSB continues to have the remedial jurisdiction to provide grievors with declaratory and directory remedies for proven contraventions of health and safety provisions contained in collective agreements.

9Similar motions have been made in other cases at the GSB, generally as a preliminary matter. Here, the grievances were heard on the merits, resulting in the Decision noted above. Simply put, the Employer submitted that the decision in Re OPSEU (Monk et al) v. Ontario (Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Services), 2010 CarswellOnt 17779, [2010] O.G.S.B.A. No. 119, 101 C.L.A.S. 376, 2010 CanLII 42123 (ON GSB) (Gray), as interpreted by this Board, is dispositive of the question. That is, that this Board is without jurisdiction to award damages whenever a compensable workplace injury is involved. The Employer relied upon the following authorities: AMAPCEO (Wilson) and MNRF, 2017 CanLII 71789 (Dissanayake); OPSEU (Foley et al) and MCSCS, 2018 CanLII 119566 (Williamson); OPSEU (Khan) and Ministry of the Attorney General, 2020 CanLII 32582 (Hewat); OPSEU (Adams) and Ministry of Health, 2021 CanLII 95708 (Lynk); Ottawa Hospital and ONA (Cudrasov), 338 LAC (4th) 80 (Slotnick); Brazeau v. Le Centre Victoria Pour Femmes (Sudbury), Decision No. 1197/19, 2021 ONWSIAT 1348; Banwait v. Wal-Mart, Decision No. 115/22, 2022 ONWSIAT 1131; Deslippe v. 2037020 Ontario Ltd and Crosby Decision No. 1232/21, 2022 ONWSIAT 1236; Decision No. 3096/17, 2018 ONWSIAT 1563. Morningstar v. WSIAT, 2021 ONSC 5576, at para 123.

10The Union, for its part, takes the position that the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, does provide a scheme of benefits for workers who are injured in the course of their employment, including mental stress, except for, "decisions or actions of the worker's employer relating to the worker's employment." This is colloquially known as the employment function bar. It is section 13 of the Act which is the foundation on which the parties here rest their submissions. It is section 13(5) that speaks to the exception relied upon here by the Union. Section 13 reads as follows:

Insured injuries

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. 1997, C. 16, Sched. A, s. 13 (1).

Presumptions

(2) If the accident arises out of the worker's employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker's employment, it is presumed to have arisen out of the employment unless the contrary is shown. 1997, c. 16, Sched. A, s. 13 (2).

Exception, employment outside Ontario

(3) Except as provided in sections 18 to 20, the worker is not entitled to benefits under the insurance plan if the accident occurs while the worker is employed outside of Ontario. 1997, c. 16, Sched. A, s. 13 (3).

Mental stress

(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. 2017, c. 8, Sched. 33, s. 1.

Personal injury

(4.1) The worker is entitled to benefits under the insurance plan as if the mental stress were a personal injury by accident. 2017, c. 34, Sched. 45, s. 1.

Same, exception

(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. 2017, c. 8, Sched 33, s. 1.

11The WSIB Decision involved here was made in 2015, prior to the amendments to s.13(4) the WSIA that incorporated chronic mental stress as compensable. The union submitted that the differences in the statute, post January 1, 2018, are not material to the matters before me. The parties proceeded on the basis of the amended language.

12The Union relied upon the following authorities: WSIB Operational Policy Manual, Traumatic Mental Stress, (Document Number 15-03-02, January 2, 2018); Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2019 ONSC 2952 (Ontario Divisional Court); OPSEU(Union) and Ministry of Community Safety and Correctional Services, 2021 CanLII 71640 (ON GSB); OPSEU (Rosati)and Ministry of Community and Correctional Services, (unreported, GSB File No. 2015-0548; 2015-1818, Anderson, January 23, 2018); OPSEU (Monk et al) and Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Services 2010 CanLII 42123 (ON GSB), 2010 CarswellOnt 17779; OPSEU (Hunt) and Ministry of the Attorney General), 2009 CarswellOnt 10454; Decision No. 2001/11, 2011 ONWSIAT 2581; Decision No. 620/08, 2008 ONWSIAT 768, 2008 CarswellOnt4154; Ontario Provincial Police Association and OPP 2018 CanLII 82193 (ON LA), 2018CanLII82193 (ON LA); Bell Canada and Unifor, Local 34-0(Union) (2016), 127 C.L.A.S.1; Unimin Ltd. and CEP, Local 306-0 (Journeyman Bonus), Re, (2016), 128 C.L.A.S. 93; Hamilton Kent Inc. and Unifor, Local 252 (Tiwana, Re, (2016), 127 C.L.A.S. 314; UFCW, Local 175 and Islamic Foundation School, Re, (2018), 136 C.L.A.S. 66; AMAPCEO and Ontario (Ministry of Community and Social Services) (Robins), 2017 CarswellOnt18130, Ontario Grievance Settlement Board; St. Patrick's Home of Ottawa Inc. and CUPE Local 2437, 2016 CanLII 10432 (ON LA), 2016 CanLII10432 (ON LA).

The Submissions of the Parties

13The employer filed written submissions and made supplementary oral submissions in this matter. Given that the motion is denied, the employer's submissions are dealt with primarily by an analysis of the authorities upon which it relied. This summary of the employer's submissions is only made possible by virtue of the careful and thorough written submissions provided by counsel for the employer. It would not do the written submissions justice to attempt to further distill them than what is provided below.

14The employer referred to the decision in AMAPCEO (Wilson), supra, for the proposition that if an illness is in any way compensable under WSIA, the GSB has no jurisdiction to award additional make-whole remedies and damages. It submitted that the same result is found in Foley and Khan, supra. It noted that the latter two cases were accepted in Adams, supra, by Vice-Chair Lynk, whose conclusions were quoted by the employer at paragraph 44 as follows:

I 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.

15The Employer also noted that Arbitrator Slotnick, in paragraph 101 of Ottawa Hospital (Cudrasov), supra, "concluded that I have no jurisdiction to consider claims that arise from the workplace accident—including extra costs of the grievor’s honeymoon and mental distress caused by the employer’s actions in relation to the bat incident—but I do have jurisdiction to consider damage claims that are separate and apart from that incident."

16As set out above, the union focused its submissions on the exception under section 13(5), being the employment function bar. It submitted that this is a statutory category specifically excluded from the worker's compensation scheme. Accordingly, it said this is an area of relief over which the GSB has jurisdiction.

17The Union said that in this matter the WSIB had made a compensation determination, and in order to understand what jurisdiction remained with the GSB it is necessary to look closely at the award made by the WSIB in its correspondence to the grievor of August 7, 2015, being the Initial Entitlement Review. The Union noted that on its face the WSIB recognized “a traumatic mental stress injury.” The initial entitlement decision accepted a psychologist’s assessment that the grievor’s psychological reaction was to the physical assault, verbal assault and ongoing harassment. The WSIB summarized the psychological assessment as follows, "the psychologist confirmed you have suffered a psychological reaction to the physical and verbal assault and ongoing harassment." The Union submitted that the WSIB's decision at page three of the WSIB Initial Entitlement Review of August 7, 2015, rests on its acceptance of the assaults of May 7, 2010 and January 17, 2014 as sudden and unexpected traumatic events". The Union said that the Decision did not recognize entitlement for the ongoing harassment notwithstanding the psychologist’s assessment. The Union said that the decision on the merits in this matter does not dwell on the areas that founded entitlement at the WSIB. Rather, it focused on breaches of articles 2, 3 and 9 of the collective agreement and on the duty of care owed by the Employer as part of the employment relationship. That duty of care included the maintenance of civility in the workplace (paragraphs 292 and 293). The Union said that the decision on the merits found that the Employer breached that duty and also found that it was a cause of the injury to the grievor, an injury that was specifically not compensated for by the WSIB. The Union said that the decision on the merits found that management, including Mr. Parisotto, the Superintendent at Maplehurst, did nothing to protect the grievor. Its, and his, failure was a failure to respond appropriately in its exercise of management functions. The Union submitted that those actions fell within the exception of s.13(5), supra.

18The Union submitted that management behavior can be so egregious that it is not an exception that fits into s.13(5). That is, management behaviour that is so egregious that it is itself an accident arising out of or in the course of employment is not saved by s. 13(5). It said that here the actions of management did not reach such a level that a claim could be made for WSIB benefits. The Union posited that the preferred analytic approach is to first ask if there has been a breach of the collective agreement, and the decision on the merits here answered that question in the affirmative. Further, the Union submitted that although the next step is to consider whether the grievor could, or did, receive benefits, the answer to that question is not dispositive. The grievor here did receive benefits, but the germane question to be answered is whether the mental health stresses of management’s actions or inactions were in respect of employment functions. If they were, the next step is to consider whether the conduct was so bad that it voids the employment function bar. The Union said that in the circumstances of this case, the behaviours did not cross the line of voiding the bar, because we know, from the WSIB Initial Entitlement Review of August 7, 2015, that the grievor was only compensated for the physical and verbal assaults of 2010 and 2014 respectively and not for the harassment that took place after those assaults, even though the WSIB had the psychologist’s report before it.

19The Union submitted that the jurisprudence supports this approach. In Hunt, supra, Vice-Chair Abramsky said at paragraph 33 that the GSB has the authority to make remedial orders that impact on management rights. It said that the decision in Monk noted at paragraph 83 that the GSB is not limited to declaratory relief in making a grievor whole. The Union submitted that this Board must carefully consider the facts, the grievor’s claims and what the WSIB did or could do. The Union said that the Divisional Court has given the Board exactly that direction in The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2019 ONSC 2952 (Ontario Divisional Court), which remitted the matter back to Vice-Chair Carrier. In its endorsement the Court said as follows:

5At paragraphs 39 and 40 of the decision under review, the GSB found as follows:

39….. The Griever here, WA, did not suffer from a traumatic event at work. Rather, the remedy 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.

[my emphasis added]

[40) In the circumstances, make whole remedies and damages for any proven and resulting illness or injury in the form here of mental stress are beyond my jurisdiction. The WSI Act provides the appropriate forum for those claims.

6According to the Applicant, the GSB's decision is clearly unreasonable in that it first found that the remedy claimed by the Applicant flowed from conduct that fell within the employment function mental stress exclusion and then found that the WSI Act was the appropriate forum for the Griever's claims for damages.

7We agree with the Applicant.

20The Court remitted the matter back with the following comments:

13I have endorsed the Applicant's Application Record as follows: "For reasons delivered orally by Sachs J., the application is allowed. The matter is remitted back to the same GSB arbitrator for redetermination on the issue of whether the employment function mental stress exclusion applies. The respondent shall pay costs in the amount of $5,000, as agreed between the parties."

21Accordingly, the Union submitted that I am required to consider where the line falls that divides management action from being compensable under the WSIA or excluded by section 13(5).

22The Union submitted that Vice-Chair Carrier’s reconsideration and the Policy Document of the WSIA, both relied upon by the Union, provide guidance with respect to determining where that line falls. The Union also submitted that the decisions of the Worker’s Safety and Insurance Appeals Tribunal (WSIAT), also offer guidance as to what is and what is not excluded by s. 13(5). It said that Arbitrator Abramsky recognized this distinction as well in OPP, supra.

23The Union also submitted that management is required to administer the collective agreement in good faith and a failure so to do may sound in damages. It said such damages are for breaches that are beyond the scope of the WSIA. It also noted that other, newer torts such as intrusion of seclusion and moral damages are all beyond the reach of the WSIB. Where there is an element of compensable and non-compensable aspects in a series of events such as here, it is a necessary task of the decision-maker to make the determination as to where to draw the line.

24The Employer submitted in oral reply that the employment function bar has no relevance in this matter because the WSIB approved the grievor’s claim for traumatic mental stress. It submitted that Vice-Chair Carrier’s reconsideration of the applicability of the S.13(5) exception rested on his finding that the grievor there would not be entitled to WSIA benefits because the initial incident took place outside of the workplace and the Traumatic Mental Stress as a result of employer actions were not so egregious as to bring them within the compensability framework. The Employer submitted that the foundation for the Traumatic Mental Stress awarded here included management’s tolerance of the additional harassment of the grievor by the co-workers who had physically and verbally assaulted him.

25The Employer submitted that the WSIAT decision in Brazeau, supra, is instructive. There the worker had applied to the WSIB for a claim of Traumatic Mental Stress, but was turned down on the basis that there was no evidence of the required “sudden and unexpected traumatic event”. The claim was based on the claimant having been bullied and harassed by co-workers and managers after returning to work from a medical leave. The worker then brought a civil suit, and the employer applied to the WSIAT for a determination under s. 31(1), which reads as follows:

31(1) A party to an action or an insurer from whom statutory accident benefits are claimed under section 26B of the Insurance Act may apply to the Appeals Tribunal to determine,

(a) whether, because of this Act, the right to commence an action is taken away;

(b) (b) whether the amount that a person may be liable to pay in an action is limited by this Act; or

(c) whether the plaintiff is entitled to claim benefits under the insurance plan.

26The WSIAT found that the civil tort claims of intentional infliction of mental suffering, harassment and negligence were statute-barred, while those for constructive dismissal, defamation and breach of the Human Rights Code were not. The WSIAT drew the distinction that while s.13(5) disentitled the worker to benefits, the mental distress suffered was “by reason of accident", as related to her alleged employer’s behaviour; that claim falls within the scope of the statutory scheme of the WSIA. On that basis, the employer submitted here that there is no remedy for the excluded management actions because the WSIA operated to give the WSIB full jurisdiction due to the accident, but deprived it of the ability to provide recompense by operation of s.13(5). That is, there was no remedy for the ongoing harassment that went unchecked by management at Maplehurst.

27The Employer noted that Arbitrator Slotnick in Ottawa Hospital also found, at paragraph 98, that the mental stress claim there was “by reason of the accident”. The Employer submitted that the combined effect of Brazeau and Ottawa Hospital is that there is no carve-out of jurisdiction by s.13(5) where the Traumatic Mental Stress claim arises “by reason of a workplace accident or injury” as understood in worker’s compensation law. An arbitrator only has jurisdiction to consider claims that are completely separate and apart from the incident.

28The Employer also submitted that Vice-Chair Lynk in Adams concluded that for claims to fall outside of WSIA they must be separate and distinct from the broad statutory authority of the WSIA.

29The Employer relied on paragraph 44 of Vice-Chair Lynk’s decision as follows:

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.

30The Employer also provided written submissions in reply to the Union's submissions on the applicability of Monk generally and in rebuttal to the Union’s submissions on the scope of the exclusion in s13(5). The thrust of the Employer’s submissions is that once an event in the workplace engages the WSIA in any degree, the only effect of s13(5) is to limit the benefits available to an injured worker. That is, there can be no impact on the level of benefits by reason of “decisions or actions of the worker’s employer relating to the worker’s employment". The employer submitted that the effect is that there would be no remedy for any such employer breaches. Unless the circumstances are, as Arbitrator Slotnick writes, unrelated to the workplace accident or injury, they are subsumed within the jurisdiction of the WSIB. That was said to be consistent with the matter before Vice-Chair Carrier, since the original accident or injury took place outside of the workplace. That was said to be the nature of the analysis in Brazeau, where the claims that were not removed by the WSIA were unrelated to the accident or injury. That was also said to be the case in Banwait, supra, Deslippe, supra, and Decision No. 3096.

31The Union in reply on the s.13(5) exemption submitted that the direction given by the Divisional Court was to complete a s.13(5) analysis. It submitted that the task is to determine, based on s.13(5), what the jurisdiction of the WSIB covered in the instant circumstances and what it did not cover. It said that for those matters that are not within the jurisdiction of the WSIB the grievor has the same rights as any other member of the bargaining unit, and where there is a right, there must be a remedy. The grievor is entitled to access the same remedial rights as others in the bargaining unit.

32The Union acknowledged the historic trade-off upon which the WSIA is built and submitted that it does not seek for the grievor damages for breaches of the collective agreement for which he would be eligible for benefits under the WSIA.

33The Union submitted that the historic trade-off is also expressed in the statutory trade-off of s.13(5). You cannot get WSIB benefits if there is an operational employment function bar. In OPP, Arbitrator Abramsky’s award did not affect or impact the historical trade-off. Rather, it considered the employment function bar, carved out as it is, as outside of the WSIB regime. The Union submitted that the OPP case anticipated decisions with respect to implied duties. It was submitted that such implied collective agreement rights are available to grievances by the exception set out in s.13(5). These rights were said to be beyond the reach of the WSIB and firmly within the jurisdiction of a labour arbitrator interpreting a collective agreement.

Analysis and Reasons for Decision

The Decision in Monk

34The decision in Monk has come to be regarded as standing for the proposition that once a workplace accident or injury is involved the GSB’s jurisdiction is limited to making declarations and/or awarding special damages. Prehearing motions have become commonplace on that basis. In my view, it is very important to avoid taking such an approach, because it fosters tunnel vision. If one looks for a workplace accident that might be linked howsoever nebulously to the facts that will be at play in a grievance and finds one, that is not the end of the enquiry and cannot support the dismissal of a grievance or truncation of remedy on that appearance alone. Monk does not stand for such a proposition, and, such an approach does a disservice to Vice-Chair Gray's reasoning in Monk.

35Paragraphs 107-109 of Monk deal with the interplay between remedies under this collective agreement and compensation under the Workers’ Compensation Act/Workers’ Safety and Insurance Act (WCA/WSIA). Those paragraphs read as follows:

What remedies for a breach of Article 18.1/9.1 are precluded by the WCA/WSIA?

107 This Board cannot award a griever 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. A "right of action" or claim to a remedy is not "for or by reason of a workplace injury or disease merely because a workplace injury or illness forms part of the context in which the claim arises. As WCAT/WSIAT has clearly said, a claim for damages is precluded only if it relates to the consequences of the worker's having suffered the injury or contracted the disease. The injured worker's right to return to work, with accommodation if necessary, is not precluded from consideration through the lens of the collective agreement and the incorporated obligations under the Ontario Human Rights Code. even though that issue is also addressed by WCA/WSIA. The same is true of other rights that may arise in a context in which a compensable injury has occurred.

108 Article 18.1/9.1 obliges the employer to take reasonable measures to avoid, prevent or minimize risk to the safety and health of employees. Injury or illness, compensable or otherwise, can be the consequence of a failure to do that. An alleged causal connection between an alleged breach of Article 18.1/9.1 and a particular compensable injury or illness does not, however, preclude this Board from awarding remedies for that breach, apart from remedies "for or by reason of the compensable injury or illness itself. Subject only to that limitation, an employee injured as a result of a risk to which she or he should not have been exposed is no less entitled to remedies that address the breach, particularly if it is ongoing, than a similarly situated employee whose exposure to the same risk has not (yet) resulted in his or her becoming injured or ill. Of course, the entitlement of a griever, whether injured or not, to declaratory or directory remedies will depend on whether granting them might serve some useful purpose in the circumstances.

109 The 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.

(emphasis added)

The test laid down in Monk is essentially that any breach that sounds in damages is only available if it stands separate and apart from the compensable injury.

The Conduct Giving Rise to the Dispute Between the Parties Arises Expressly or Inferentially Out of the Collective Agreement Between Them

36There can be no question that the employer owes duties to the grievor that are express or implied (Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929).

37Monk is clear in its endorsement of the Board’s jurisdiction to award damages for breaches of article 9.1 of the collective agreement, which is one of the articles relied upon by the union in these proceedings. Article 9.1 reads as follows:

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.

38Monk sets out the jurisdiction of the Board to award damages for breaches of article 9.1, and generally in relying on Polymer, subject to the impact of the WSIA. As found in paragraphs 83 and 8.4, as follows:

Can this Board award damages for breach of Article 18.1/9.1?

83 The Board has previously concluded that it is not limited to granting declaratory or directory remedies for breaches of Article 18.1/9.1. Subject to the impact that the WCA/WSIA may have on it, the Board has consistently said that it has jurisdiction to award damages for a breach of Article 18.1/9.1 in an appropriate case. In my view, that conclusion is correct. Express collective agreement language is not needed to support that jurisdiction. As the Courts confirmed in Polymer, an arbitrator's jurisdiction to award damages for breach of a provision of the collective agreement flows from the statutory and, thence, collective agreement requirement that differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement be settled by arbitration.

(emphasis added)

84 The fact that the opening words of Article 18.1/9. seem similar to an obligation in the Occupational Health and Safety Act, a statute that provides for directory but not compensatory remedies, does not affect the applicability of Polymer in this regard. I do not need to decide here whether, in the absence of an express employer obligation to make reasonable provisions for the safety and health of employees, an arbitrator could award damages for breach of the Occupational Health and Safety Act on the basis that subsection 48(12)(j) of the LRA and the decision in Parry Sound warrant treating it as though incorporated into the collective agreement.

39It is now accepted that the exercise of managements' rights is subject to scrutiny, and the inappropriate exercise of those rights may sound in damages. The verbal formulation of how those obligations is expressed varies in the jurisprudence. Examples may be found in the cases relied upon by the union.

40For example, in Bell Canada arbitrator Surdykowski encapsulates this nicely at paragraph 36:

36 Although the result went against the Union, Arbitrator Burkett's decision in United Parcel Service reflected what 35-years ago was already the evolving arbitral approach to the issue, and presaged the Ontario Court of Appeal's decisions in Metropolitan Toronto (Municipality)" C.U.PE. (1990), 1990 CanLII 6974 (ON CA), 74 O.R. (2d) 239 (Ont. C.A.), and Brampton Hydro Electric Commission. In that latter case, O'Driscoll J. (writing for the Court at pages 177-178) offered the following conclusions concerning arbitrator jurisdiction:

1. In my view, the collective agreement before us has an implied term/article/clause that neither party to the agreement shall conduct themselves or act in any way that is in bad faith, arbitrary, discriminatory or unfair.

2. It will be said: "If the parties had intended that type of implied article to govern their conduct, it would have been stated explicitly in the collective agreement.'' It seems to me that the answer to that argument is found in the mere asking of this rhetorical question: "Can you imagine any party. while negotiating a collective agreement. bargaining to include an article: 'the parties shall have the right. at all times and in all circumstances. to act in bad faith and/or in an arbitrary manner and/or in a discriminatory way?'"

41In Hunt, supra, Vice-Chair Abramsky also dealt with the Board’s jurisdiction to issue orders that impact on management’s rights in paragraph 33, and found the GSB has the authority to issue remedial orders:

33 These cases establish that even though a remedial order may impact on managerial rights, the Board has the authority to make such an order when it is necessary to do so to remedy the grievance. Accordingly, based on the jurisprudence, it is not sufficient for the Employer to assert that the decisions regarding the production of transcript work fall within the realm of a management right, which cannot be usurped by the Board. If it is necessary to do so, in order to fulfill its mandate to provide a full and final resolution of a grievance, the Board has the authority to issue remedial orders that impact on managerial rights.

(emphasis added)

It is my view as well that the GSB has the jurisdiction to award damages for breaches of the managements' rights provisions, express or implied, of the collective agreement.

Collective Agreement Breaches Must be Separate and Apart from the WSIA Claim

42In the case before me the union submits that there were harms to the grievor different than those for which he received benefits from the WSIB. It submits that the WSIA, itself creates a category of employer behaviour, in the exercise of its management’s rights, that is not compensable by operation of the WSIA , which may be remedied by the GSB.

43The union submitted that the employment function bar exception in s.13(5) set out above is what entitles the grievor here to damages for the employer’s breaches of the collective agreement and duty of care, as are detailed in the decision on the merits of these grievances. It submitted that the GSB has the jurisdiction to award those damages.

44Before turning to consideration of the impact of s.13(5), it is essential to recognize the note of caution in the jurisprudence of the care that must be taken in separating the interplay of article 9.1 and the WSIA.

45In Adams, Arbitrator Lynk engaged in that exercise in deciding in favour of an employer motion to strike out a claim for damages arising from an employer’s purported breach of article 9.1. It was his view that the claims in the grievances before him were not “distinct and separate from the broad statutory authority over workplace injuries and illnesses arising from the WSIA". (paragraph 38).

46The Adams decision is instructive and requires careful consideration. Arbitrator Lynk decided that the monetary claims made in the matters before him were the same as the monetary awards received by the grievor pursuant to the WSIA. Paragraphs 35 and 36 of the decision read as follows:

(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.

47Arbitrator Lynk had the following to say regarding Ontario Provincial Police, decided by Arbitrator Abramsky. He sets out that what differentiates Arbitrator Abramsky’s reasoning in OPP from his own is that the grievors in OPP were not entitled to WSIA benefits for the harms suffered there:

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.

(emphasis added)

48Arbitrator Lynk was of the view that the same analysis, that there was no distinction between the monetary claims in the grievances and the benefits the grievor was compensated for under the WSIA, prevailed in Foley, Mohamed and Khan. This summation of the effect of Foley, Mohamed and Khan is set out in arbitrator Lynk's decision at paragraphs 42 and 43:

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 fora 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.

49I do note that one must exercise caution with Arbitrator Williamson’s characterization in Foley of what remedies are left over for the Board if the WSIA is engaged. First, it is paragraph 109 in Monk, not paragraph 19 (supra), that addresses what may be excluded from the WSIB’s jurisdiction. As was his wont, Vice-Chair Gray’s reasoning and drafting in Monk was careful, thoughtful and thorough. Vice-Chair Gray does not leave the same impression as does Arbitrator Williamson that all that remains of the Board’s jurisdiction where the WSIA is engaged is consideration of special damages. It was Vice-Chair Gray's view that monetary remedies for breaches of article 9.1 were not precluded by the WSIA “unless it is, in substance, a remedy for the consequences of a compensable injury or illness …”. He also said that what is required is 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.” I take that to mean that the breaches of article 9.1 must stand apart from the compensation jurisdiction of the WSIA. Arbitrator Lynk described that as “evidentiary daylight” as expressed in paragraph 44 of his decision as follows:

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.

(emphasis added)

50The challenge as I see it is to assess, on the facts of each case, whether the breach does stand apart from the compensation scheme of the WSIA. Where, as here, the record clearly includes a written decision of the WSIB and the relevant WSIB policies, the task is largely a matter of parsing those documents and according them the authority and deference due to such a highly specialized tribunal in order to see whether the instant claims do stand apart. However, absent a decision of the WSIB, it would fall to me to make that determination, as is described in Monk.

51It is also well recognized that the WSIA compensation jurisdiction does not encompass such separate and distinct monetary remedies as breaches of the Ontario Human Rights Code. As set out above, any human rights implications that might have arisen in these grievances are not before me.

The Decision and Policy of the WSIB in This Matter

52Turning now to the decision of the WSIB in these matters, it is clear to me that the decision of the Case Manager, dated August 7, 2015, with respect to initial entitlement meant to, and did, clearly distance the WSIB’s grant of entitlement from the ordinary management functions being exercised by the grievor’s managers at the Maplehurst Correctional Centre. That is, in my view it was the clear intention of the Case Manager of the WSIB to limit the decision by recognizing and invoking the employment function bar of s.13(5).

53The narrow decision is set out at page three of the WSIB’s August 7, 2015 letter as follows:

Decision

I have carefully considered all of the information currently available on file. I accept the incidents of May 07, 2010 and January 17, 2014 meets the criteria for sudden and unexpected traumatic events. Therefore, I am approving this case for health care benefits for a Traumatic Mental Stress injury.

As there is medical to support you are unable to return to work, I have allowed full loss of earnings benefits from February 02, 2015.

I have made this decision based on the information available to me. If you do not understand the decision, or if you do not agree with the conclusions reached, please call me. I would be pleased to discuss your concerns.

(emphasis added)

54The Case Manager also sets out the criteria for granting recognition. Those criteria very clearly include a consideration of the employment function bar and how general workplace conditions and normal functions of management are thereby outside of the jurisdiction of the WSIB in its administration of the WSIA and do not allow entitlement. The criteria set out at page 2 are as follows:

Criteria:

Loss of earnings (LOE) benefits for a psychotraumatic disability resulting from the effects of work-related mental stress may be considered if there has been:

1. An acute psychological reaction to a sudden and unexpected traumatic event arising out of and in the course of the employment

or

2. A final psychological reaction to a series of sudden and traumatic events arising out of and in the course of employment (the cumulative effect of such events)

Unless there are exceptional circumstances, the stress reaction is considered to be temporary.

Workers are not entitled to benefits for traumatic mental stress that is a result of the employer's employment decisions or actions. Workers who develop mental stress gradually over time, due to general workplace conditions, are not entitled to benefits.

For a mental stress claim to be allowed for benefits there must be sufficient evidence to confirm the series of events that led to the stress reaction, and the diagnosis must be related to those events.

55The Case Manager's Decision goes on to list various policy examples that do allow entitlement. Essentially, all of the examples given are of a person being directly involved in a traumatic incident. Here, the Case Manager notes at page one that the grievor attributed his psychological condition to being physically assaulted on May 07, 2010, verbally threatened on January 17, 2014 and "ongoing harassment and bullying from January 17, 2014 until you stopped working on January 29, 2015." The decision granted entitlement for the assault and threats. The WSIB had an investigator, Mr. DiStefano, who investigated the grievor's claims, and the Case Manager had a psychologist's report that concluded that the grievor had "suffered a psychological reaction to the physical and verbal assault and ongoing harassment". Nonetheless, the WSIB, in this decision did not grant entitlement for the ongoing harassment and bullying. The WSIB excluded the bullying and harassment from recognition, by virtue of s.13(5).

56Also to the point, with respect to understanding the Case Manager's reasons for relying on the employment function bar, is the list at page 2 of the decision of examples that WSIB policy recognizes as not providing entitlement; that list is as follows:

Policy does not provide entitlement for stress that develops as a result of an employer's actions or decisions such as:

• Terminations

• Demotions

• Transfers

• Changes in productivity expectations

• Discipline

• Changes in working hours and/or duties

57The record before me also includes the WSIB Operational Policy Manual, Traumatic Mental Stress, Document Number 15-03-02, which as well provides guidance in the matters before me. Page 4 of the document deals with the employment function bar as follows:

Employers' decisions or actions relating to employment

There is no entitlement for traumatic mental stress caused by on 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.

58I conclude, from the list in the Case Manager's Decision and the Policy Manual from which the list is obviously taken, that it is more likely than not that the Case Manager applied the Policy and decided that the grievor was not eligible for benefits under the WSIA for the mental stress of the bullying and harassment that the grievor was subjected to subsequent to the assault on May 7, 2010. Nor was the grievor eligible for benefits under the WSIA for the employer's failure to protect the grievor throughout.

The Effect of the Employment Function Bar in s.13(5) of the WSIA and the Duty of Care Owed to the Grievor

59The union submits that s.13 of the WSIA is the foundation of the WSIB’s exclusive jurisdiction. For the sake of convenience, I set it out again here:

Insured injuries

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. 1997, C. 16, Sched. A, s. 13 (1).

Presumptions

(2) If the accident arises out of the worker's employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker's employment, it is presumed to have arisen out of the employment unless the contrary is shown. 1997, c. 16, Sched. A, s. 13 (2).

Exception, employment outside Ontario

(3) Except as provided in sections 18 to 20, the worker is not entitled to benefits under the insurance plan if the accident occurs while the worker is employed outside of Ontario. 1997, c. 16, Sched. A, s. 13 (3).

Mental stress

(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. 2017, c. 8, Sched. 33, s. 1.

Personal injury

(4.1) The worker is entitled to benefits under the insurance plan as if the mental stress were a personal injury by accident. 2017, c. 34, Sched. 45, s. 1.

Same, exception

(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. 2017, c. 8, Sched 33, s. 1.

60The union also submits that subsection 13(5) has the effect of carving out from the WSIB’s jurisdiction a class of management actions that are not compensable, and, accordingly, they fall to be decided by a labour arbitrator where there is a collective bargaining agreement. I agree. I also agree that the subsection includes examples of the types of actions that are outside the purview of the WSIB and that the list is not exhaustive. It should be noted that the examples given are those that are generally at the heart of a managements' rights clause in a collective agreement. The managements' rights clause of the collective agreement in this matter reads as follows:

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

61I note that the management rights in this collective agreement are very much in accordance with the typical actions set out as examples in s.13(5) of the WSIA.

62The actions and inactions of Maplehurst Correctional Centre management were taken by the WSIB to be within the parameters of the employment function bar. In the decision on the merits, I described Maplehurst Management’s treatment of the grievor as contumacious and continuous. That is, members of management stubbornly and/or willfully ignored what the grievor and the union said about the situation and failed to give the help that they asked for that was required to provide him with a safe and healthy workplace and consistent with its duty of care. They didn’t care, and that is just how Maplehurst was run; that is how they made decisions; that is how they chose which courses of action to take or not to take with respect to the grievor’s employment and his working conditions, none of which is compensable under the WSIA by virtue of s.13(5), the WSIB’s Policy Document 15-03-02 and the Case Manager's Decision of August 7, 2015.

63Paragraph 291 of the decision on the merits captures some of the flavour of the grievor’s treatment which is not compensable under the WSIA and the WSIB’s implementing policy document. It is s.13(5) that carves out the employment function evidence that stands these breaches of the duty of care and articles 2 and 9.1 apart from the WSIA; it is Arbitrator Lynk’s “evidentiary daylight”. It is the crack where the light gets in. Paragraph 291 reads as follows:

291Mr. Plouffe also suffered physically, financially and psychologically. As I set out above, each individual complaint of his sounds somewhat trivial; that is certainly how Parisotto considered them, trivial. Yet cumulatively the harassment built up to be devastating. His final OR, complaining of how he had been treated is the last cry for help from a broken man, not broken by the assault and threat of violence, but by the indifference of the employer. His final Occurrence Report reads as follows:

Sir, on Thursday January 29/15 approx 1910 I was working Unit #9 floor. I was in Unit 9 Programs working. I heard the Programs door open & in came CO (Dave Murchison) with a visitor. I looked at CO (Dave Murchison) & he started to smile at me. Followed by an intimidating glare. I saw CO (Dave Murchison) leave 7 I immediately called the supervisor on shift OM16 (Essery) & explained to him about CO (Dave Murchison) coming into Unit #9 Module & threatening my safety & wanted to fight me, I asked OM16 (Essery) to please keep CO (Dave Murchison) off Unit #9 for remainder of my shift because I am afraid of CO (Dave Murchison) & fear for my safety. OM16 (Essery) complied with my request and then asked me what was being done about this situation, I explained to him that nothing had been done about my health & safety. I feel that Mr. (Parisotto) is still choosing to ignore (Workplace Violence Prevention Policy) (the Code of Conduct) (Zero Tolerance for Violence at The Workplace. Bill 168 - Anti-Bullying at the Workplace). I feel if these Policies & Procedures were followed by (Mr. Parisotto) I would not be afraid to go into work & not be in fear of being attacked physically and verbally by CO (Dave Murchison) & (Heather Murchison) again.

64On the merits, I found, in addition to the breaches of the collective agreement, that Maplehurst management failed in the duty of care owed by management to the grievor to manage the enterprise in a civil and respectful way. That discussion is set out in paragraph 292 of the decision on the merits, which reads as follows:

292Mr. Shime cited the United Kingdom's House of Lords in his excerpt above, which describes the duties of the Employer, and Mr. Shime extends those duties to the Union and the employees. He says, "The duty to care for the psychological welfare of the employee is a manifestation of an employer's responsibility to maintain civility in the workplace." In the instant matter, not only did this Employer, particularly through the actions and inactions of Superintendent Parisotto, fail in this duty of care to maintain civility in the Maplehurst Correctional Complex, it tolerated, condoned and participated in the promotion of incivility against Mr. Plouffe. As Mr. Shime correctly concludes in the excerpt above, "A work environment is not a place where one performs a set of tasks and no more, it is a place that now requires civility on behalf of all workplace participants which includes concern for everyone's physical and psychological welfare".

65The excerpt from Arbitrator Shime’s decision in Toronto Transit Commission and ATU, Local 113 (Merolle), Re, 2013 Carswell Ont 18432 (Shime) is set out in paragraph 287 of my decision on the merits in these matters. They are paragraphs 32 through 34 in Arbitrator Shime’s award. I have taken the liberty of correcting the sub-quote in the manner noted in my paragraphs 288 and 289; the corrected excerpt from Arbitrator Shime's decision in Merolle is as follows:

32 ... Work is a fundamental and important part of a person's life and is a place where a person spends a significant part of his/her life. In Reference re Public Service Employee Relations Act (Alberta), [1987] I S.C.R. 313 (S.C.C.) at p. 368, Chief Justice Dickson made the following statement,

Work is one of the most fundamental aspects in a person's life, providing the individual with a means of support and as importantly a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

The importance of work and the time spent working is reflected in various statutory provisions which are intended to enhance and improve the work experience. The enactment of legislation such as, Employment Standards Legislation and Health and Safety Legislation are intended to improve the work experience. Human Rights legislation and the recent anti-violence amendments to the Occupational Health and Safety Act regulate workplace conduct by prohibiting conduct such as discrimination, sexual harassment, workplace violence and harassment. In my view, the regulation of conduct is to promote civility in the workplace. Employees should not have to enter the workplace fearful that they will be harassed, sexually harassed, discriminated against or be subjected to threats, abuse or violence.

33 Also, there is an emotional and psychological aspect to the workplace which must be considered. The House of Lords in England, in Malik, v. Bank of Credit & Commerce international SA (1997), [1998] A.C. 20, [1997] 3 All E.R. 1 (U.K. H.L.), has commented on the duties of an employer as follows:

Lord Slynn of Hadly recently noted [from Spring v. Guardian Assurance: [1994] UKHL 7 (07 July 1994)], "the changes which have taken place in the employment and employee relationship with far greater duties imposed on the employer in the past, whether by statute or judicial decision to care for the physical, financial and even psychological welfare of the employee."

(emphasis added)

The duty to care for the psychological welfare of the employee is a manifestation of an employer's responsibility to maintain civility in the workplace. To that, I would add that it is also the responsibility of the union and the employees to maintain a civil workplace.

The Jurisprudence relied Upon by the Employer

66I have carefully considered the submissions and authorities of the parties and have the following observations on the authorities relied upon by the employer.

67The interpretation that s.13(5) sets out an area of jurisdiction that is excluded from the WSIB and enforceable in either the courts at common law or at arbitration in the collective bargaining context is borne out by a close examination of the cases relied upon by the employer and the authorities that underlie them.

68In AMAPCEO (Wilson) v MNRF), supra, the Association did not rely on the exception in s13(5) (at paragraph 20). Accordingly, the Board went on to find that the WSIB had jurisdiction. The decision is not helpful on the central issue before me, being the effect of s.13(5) of the WSIA.

69The employer relied on Foley, and Khan, supra. The effect of these decisions was summarized by arbitrator Lynk in Adams. I agree with Arbitrator Lynk's comments set out in my paragraphs 48 and 49 above.

70In Ottawa Hospital , supra, Arbitrator Slotnick reviews the caselaw and draws a similar distinction as that drawn by Arbitrator Lynk in Adams. In paragraph 101 Arbitrator Slotnick sets out the following:

101 In summary, I have concluded that I have no jurisdiction to consider claims that arise from the workplace accident—including extra costs of the grievor’s honeymoon and mental distress caused by the employer’s actions in relation to the bat incident—but I do have jurisdiction to consider damage claims that are separate and apart from that incident.

71I disagree with the employer’s submission that Arbitrator Slotnick's reasons dispatch the union’s submissions made here with the succinct conclusion that the “mental stress claim here is for or by reason of the accident”. The entirety of Arbitrator Slotnick's paragraph 98 is as follows:

98. Furthermore, I do not accept the union’s argument that subsection 13(5) of the WSIA provides an avenue for mental stress damages in this situation. That subsection bars entitlement to workers’ compensation benefits for mental stress if the issue is caused by decisions or actions by the employer “relating to the worker’s employment.” The union argues that this bar allows for non-WSIB claims for mental stress where the damages relate to the actions of the employer, which the union says applies here. The union relies on this employer’s policies on safety and hazards, such as bats, in the workplace, which it says relate to the worker’s employment and the inadequacy of which led to a situation that caused mental stress. However, subsection 13(5) refers to “the worker,” indicating it is about actions and decisions related to the individual worker – as per the examples given in the subsection, such as discipline or reassignment – rather than general employer policies such as those related to health and safety. Further, as discussed above, the mental stress claim here is for or by reason of the accident.

(emphasis added)

72That paragraph says two things. First, that s.13(5) is about “actions and decisions related to the individual worker”, not to employer policies. Second, s.13(5) does not apply in the circumstances before Arbitrator Slotnick. Paragraph 101 in Ottawa Hospital, quoted above, sees Arbitrator Slotnick agreeing that the test is whether the damages claims, "are separate and apart from the incident." That is the same situation as in Adams and here.

73Arbitrator Slotnick dismissed claims that were clearly derivative of the workplace accident; that is, claims that were not "separate and apart from that incident", being an accident that had been adjudicated by the WSIB. He did not allow claims for extra costs denied by the WSIB. He also relied on Morningstar v WSIAT, 2021 ONSC 5576 (Div.Ct.). This was a Divisional Court judicial review of two decisions of the Workplace Safety and Insurance Appeals Tribunal (WSIAT). Morningstar was also considered in Banwait, infra, and Deslippe, infra, which are also relied upon by the employer in its submissions here.

74At paragraph 20 of the Employer’s Reply Submissions, the employer glosses over the effect of Morningstar by focussing only on the uncontroversial agreement by the Divisional Court with the applicant, set out at paragraph 123 in Morningstar, that the harassment at play there is barred by s.31 of the WSIA. Morningstar has much more to teach us.

Morningstar

75The Court in Morningstar helpfully sets out the legislative framework that encapsulates the historic trade-off that underpins the WSIA, as also described in Monk. Those provisions and the Court’s summation of them are in paragraphs 51 through 54, of the Divisional Court's reasons as follows:

The legislative scheme that carries the policy into effect

50A workplace “accident” is broadly defined under s. 2(1) of the Act, and includes (a) a wilful and intentional act, not being the act of the worker; (b) a chance event occasioned by a physical or natural cause; and (c) disablement arising out of and in the course of employment. Section 13(4) extends coverage to chronic or traumatic mental stress. Section 13(1) of the Act sets out the scope of what the scheme provides to workers for personal injury: “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”

51The legislative enforcement mechanism for the historic trade-off finds its place in ss. 26, 28, and 31 of the Act. The relevant provisions in the Act read as follows:

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

(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.

Certain rights of action extinguished

28(1) A worker employed by a Schedule 1 employer, the worker’s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:

1. Any Schedule 1 employer.

2. A director, executive officer or worker employed by any Schedule 1 employer.

Decisions re rights of action and liability

31(1) A party to an action or an insurer from whom statutory accident benefits are claimed under s. 268 of the Insurance Act may apply to the Appeals Tribunal to determine,

(a) whether, because of this Act, the right to commence an action is taken away[.]

52Two things are immediately apparent about these provisions.

a. A primary focus in s. 26 of the Act, both in subsections (1) and (2), is on “benefits under the insurance plan”, that is, benefits included in the Act, as set out in s. 13(1). Benefits under the insurance plan that stand in place of what could be recovered in a tort action are what the historic trade-off is about, after all.

b. Further limiting the reach of s. 31 is the specific reference in s. 26(2) to workplace “accidents”, and that in s. 28(1) to a “worker’s injury or disease”. This carries into effect the policy behind the Act of taking away the ability to sue for personal injury, that is, under the tort regime. Contrary to the broader assertion advanced by Hilton in para. 39 of its factum, the wording “in lieu of all rights of action” in s. 26(2) can only reasonably be understood, in the context of these provisions and their wording, as referring to a tort claim or a claim for benefits available under the Act.

53In the context of the policy that justifies such legislation as set out in Pasiechnyk, and of the words of the provisions in the Act, any assessment under s. 31 reasonably begins from a position of restraint on the part of the WSIAT when an application is made to bar a claim that is not in tort. While the “trade-off” enacted in the legislation prevents attempts by employees at seeking to opt out of the scheme set up by the Act, employers likewise should not be permitted by the WSIAT to insulate themselves from legitimate claims outside of the realm of tort.

54Any failure to at least consider the type of action and the nature of compensation offered and not offered under the Act in a s. 31 analysis would appear to involve an unreasonable oversight. This is especially so in the case of damages for constructive dismissal. So, at para. 126 of WSIAT Decision No. 616/21, 2021 ONWSIAT 848, considered below, the Vice-Chair held that “[i]t is only when the damages claimed in the civil action result from the existence of a work-related personal injury that the right to bring a civil action is barred.”

(emphasis added)

76The Court in Morningstar was dealing with the judicial review of two decisions of the Workers Safety and Insurance Appeals Tribunal (WSIAT) that had held that constructive/wrongful dismissal actions were WSIA barred by s. 31 of the WSIA. In those cases, the WSIB had allowed benefits for harassment.

77In my view, what the Morningstar decision of the Court tells us is that, in unwinding the "intertwining" of the two strands of constructive dismissal actions and WSIA benefits, the panels of the WSIAT fell into error because they had tunnel vision about the "intertwining", so much so that they were unable to see that the two strands were not intertwined; they stood apart from each other. That is, if one commences the analysis by looking for intertwining, that will colour the outcome. All you see are the similarities, when you should be looking for the differences. It is a form of circular reasoning.

78At many junctures the Court underscores the importance of considering the type of action and the nature of the compensation that is offered, or not offered, under the WSIA. Applying those concerns to the instant matters, we are not concerned here with an action in court, but rather with findings of breaches of the collective agreement and the duty of care, and the unavailability of benefits under the WSIA, by operation of the employment function bar.

79The decisions being reviewed by the Divisional Court were made by the WSIAT pursuant to s. 31, being applications to the WSIAT for a determination as to whether the right to commence an action had been taken away. Although these cases dealt with actions for constructive dismissal, the Court’s reasons provide important general guidance on what determines whether a matter stands apart from the historic trade-off of the WSIA. That is, is there a crack that lets in Arbitrator Lynk’s evidentiary daylight? I also note that on the facts of this matter, had this been a common law employment relationship, we would be engaged in a constructive dismissal analysis.

80In paragraph 54 the Court suggests that a primary consideration is to at least consider the type of action and the nature of compensation offered and not offered under the Act:

54Any failure to at least consider the type of action and the nature of compensation offered and not offered under the Act in a s. 31 analysis would appear to involve an unreasonable oversight. This is especially so in the case of damages for constructive dismissal. So, at para. 126 of WSIAT Decision No. 616/21, 2021 ONWSIAT 848, considered below, the Vice-Chair held that “[i]t is only when the damages claimed in the civil action result from the existence of a work-related personal injury that the right to bring a civil action is barred.”

(emphasis added)

81The next part of the Court's reasons deals with the need of, “guarding against claims disguised as wrongful dismissal, that is really one for worker’s compensation benefits.” In our situation the question would be along the lines of whether the claim of breaches of the collective agreement are really disguised tort claims for WSIA benefits. In the matters before me, they are not. The Court's reasons at paragraph 59 are helpful:

59In WSIAT jurisprudence, when non-tort claims are barred, there is often an indication that the plaintiff worker is attempting to improperly disguise a tort action as another kind of action so as to escape the limits of the regime established by the Act. The origin of the injury is not decisive, rather, it is the bona fides of the civil action. So, in Decision No. 670/97, [1998] O.W.S.I.A.T.D. No. 570, where the WSIAT permitted a wrongful dismissal action to proceed, the WSIAT held (at para. 27):

However, notwithstanding our general observation about the lack of overlap between rights under the Workers' Compensation Act and rights of action for wrongful dismissal, there may be cases in which the connection between the injury and the claim for damages for wrongful dismissal is so strong that a panel would perceive that the substance of the wrongful dismissal action was merely a claim for workers' compensation benefits in disguise. [emphasis added]

82The Court in Morningstar engaged in a thorough review of the jurisprudence of the WSIAT dealing with constructive/wrongful dismissal and summarized the salient aspects in paragraph 77 as follows:

77Throughout the WSIAT statutory bar jurisprudence, efforts are made to weed out claims for personal injury or personal injury claims disguised as other causes of action that would otherwise frustrate the historic trade-off. However, the WSIAT and its predecessors have also recognized that bona fide claims for constructive/wrongful dismissal should be permitted to proceed, as they are not tort actions and are distinct from personal injury claims, and attract damages for which the Act offers no compensation.

(emphasis added)

83In the Court’s Discussion it concludes that the two WSIAT decisions under review failed to use the tools at hand to properly see the causes of action as separate from the WSIA. I find this analysis to be very helpful here. The exercise is to see if the strands of WSIA benefit entitlement and article 9.1 / duty of care breaches are viable separate strands. The Court took exception to the approach taken by the WSIAT in the two decisions under review because they started from a linkage perspective, which failed actually to assess and apply the policy considerations of the "historic trade-off":

Discussion

81In my view, in both of the decisions under review, the WSIAT’s reasoning and conclusions were unreasonable. It applied the “inextricably linked” test to the facts from the applicant’s statement of claim, and determined, twice, that the facts set out by the applicant were “inextricably linked” to the workplace injury, and that therefore the applicant’s action for constructive dismissal must be barred.

82These determinations were unreasonable because the two decisions applied the “inextricably linked” test in a way that ignored the policy behind the legislation and wording in ss. 26, 28, and 31 of the Act that offered guidance to their interpretation. In so doing, the WSIAT necessarily disregarded essential facts in the applicant’s claim and supported its decisions on inappropriate authorities and failed to consider relevant authorities.

83The focus in the decisions under review on the linkage of the facts to the accident in question, rather than on the bona fides of a cause of action for constructive dismissal or on the availability of benefits under the Act, leads to logical flaws in the decisions and generates a result that flies in the face of the “historic trade-off,” and is unreasonable. Although both decisions speak in terms of “inextricable linkage” of facts to the workplace injury, this is a misnomer when the WSIAT unreasonably did not resort to the tools at hand to extricate an apparently viable claim for constructive dismissal. The linkage is only inextricable if the tools that are available to extricate it are unreasonably ignored.

84I conclude that no proper lines of reasoning would support the decisions under review.

84It is important to understand the process error into which the Divisional Court finds that the WSIAT decisions fell. Basically, the WSIAT was looking through the wrong end of the telescope, which brought them to the opposite of the correct conclusion. The correct conclusion is out of view. Alternatively, it may be thought of as tunnel vision. Once fixated upon the intertwining of the accident/benefits and breaches/damages, while giving primacy to assessing whether the facts of the latter reach back and touch upon the former, ignores the policy of the WSIA, which is the trade-off. The question that must underlie the entire analysis here is whether the collective agreement and duty of care breaches were part of the historic bargain. If the WSIA itself says that they are not, on the plain meaning of s.13(5), and the Case Manager excludes them in the WSIB's decision covering this matter, then they are not part of the historic bargain.

85I also have the benefit here, as part of my toolbox, of all of the facts of the case, as found in the decision on the merits. The facts of the matters before me demonstrate that benefits were awarded for the assault and threat of assault. However, what fuels the union’s claims under consideration here is the employer’s failure to maintain a civil workplace and make reasonable provisions for the grievor’s safety and health after the assault and threat of assault. It was the employer’s failure to care about the grievor's and the union's entreaties that the institution was being run in a manner that was harming the grievor. That has nothing to do with the accident other than the fact that it was the same assailants that were being allowed to run free in the institution who were continuing to engage the grievor in what on the surface were seen by management to be trivial acts. That was a different accident waiting to happen. Unless it did, the WSIA had nothing to do with it. As set out above, the employer's actions were not egregious enough to amount to a new and different accident.

86As set out above, the Court underscores the importance of considering the nature of the compensation offered and not offered under the WSIA. At a number of points in the decision the Court hammers away at the importance to the analysis of whether benefits for the alleged breach are or are not available pursuant to the WSIA. For example, paragraph 110 of the Court's reasons read as follows:

110The historic trade-off that the Act represents prevents workers from suing in tort. WSIAT jurisprudence has recognized that, generally speaking, wrongful dismissal actions will not be barred under s. 31. This makes sense, as wrongful dismissal involves employment and contract law, not tort law, which is the subject area of the historic trade-off. In order to ensure that workers do not evade the boundaries of the Act, the WSIAT also has barred actions where the cause of action appears in reality to be a disguised WSIB claim. However, earlier WSIAT decisions have consistently recognized that what also sets wrongful dismissal actions apart are damages that are not available under the Act. Not so the Decisions under review.

(emphasis added)

87The Court is displeased with the tunnel vision approach taken by the panel in the two WSIAT decisions under review and goes on to differentiate the personal injury aspects of benefit analysis from contractual breaches that relate to "the employer's alleged disregard for the applicant's terms of employment." (paragraph 112, immediately below). It is not a simple difference between tort and contract but the legal relationship that is important; that is, where does the situation fall with respect to the historic trade-off. If there is no remedy under the WSIA, then disregarding the terms of employment is a separate and distinct matter, provided it is not so egregious that it is a new accident. The terms of employment at issue here are article 9.1 and the duty of care. The Court says the following at paragraph 112:

112The holdings in the decisions under review unreasonably fail to consider that the claim for wrongful dismissal focuses on a different legal relationship than the claim for harassment and requires compensation for damages not within the purview of the Act. Sections 26, 28, and 31 encourage the WSIAT to consider issues relating to benefits available under the Act and emphasize that it is claims involving personal injury that are at issue. In the decisions under review, the linkage of “all damages claimed” to the “personal injury”, sweepingly disregards the pleading for damages in lieu of notice, and aggravated, moral and punitive damages, which are all clearly linked in law to the employer’s alleged disregard for the applicant’s terms of employment.

(emphasis added)

88It is damages in the nature of aggravated, moral and punitive damages that the union seeks here, and there is not such behaviour as amounts to compensable harassment that would obviate the application of s.13(5). What we have here is a poisoned work environment.

Poisoned Work Environment

89I have not been directed to any WSIAT jurisprudence where the WSIA compensated a worker for being subjected to the sort of poisoned work environment as evidenced in this matter. There are cases where benefits were denied because the stress caused by employer actions were found to be within the employment function. Those cases were relied upon by the union. For example, benefits were denied because the employer's actions were not so egregious as to take it beyond the scope of its legitimate employment function. (DECISION NO. 2001/11, 2011 ONWSIAT 2581 at paragraph 2).

90DECISION NO. 1034/11, 2011 ONWSIAT 2114, is also useful as a guideline because it is an earlier case decided before the amendments to the WSIA that allowed compensation for chronic stress. The panel said that there was not a traumatic mental stress injury. In the course of so doing, the panel found that the worker's stress and frustration was within the employment function, even though his complaints had been made to management it the highest levels. Paragraph 80 reads as follows:

(80) With respect to this aspect of the worker's claim, the employer's representative submits that these events cannot attract entitlement for Traumatic Mental Stress, because the worker's claim is in the nature of a claim for stress caused by the employer's decisions or actions relating to the worker's employment. The Panel agrees with these submissions. In our view, this aspect of the worker's claim pertains to his frustration and stress related to management's response to his claims and concerns which were made to the highest officials. The evidence indicates to the Panel that the worker was reprimanded for not following the usual chain of command for making complaints or raising concerns. The employer's actions in this regard are actions that relate to the worker's employment, and pertain to the employer's decision to discipline the worker. While the worker clearly found these events to be frustrating and stressful, there is not entitlement for mental stress in this context, given the explicit wording of the legislation and policy.

91Decision No. 620/08, 2008 WSIAT 768, is a case where management's treatment of the worker was "rude, disrespectful and certainly inappropriate". The panel also recognized that each case should be considered on its own merits. Paragraph 51 reads as follows:

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 decisionmaker to conclude that a supervisor exceeded the boundaries of the employment function.

(emphasis added)

92Having reviewed the jurisprudence relied upon here and the authorities that underlie them, I conclude that the claims here are not compensable pursuant to the WSIA. In this regard I return, briefly, to the Divisional Court's endorsement on judicial review, of Vice-Chair Carrier's decision above. There Vice-Chair Carrier characterized the situation before him as a poisoned work environment. The Court, in its paragraph 5, quotes Vice-Chair Carrier from his paragraph 39 as, "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." The Court characterizes the situation before Vice-Chair Carrier as conduct falling within what it calls the "employment function mental stress exclusion", that being the exclusion in s.13(5) of the WSIA.

6According to the Applicant, the GSB's decision is clearly unreasonable in that it first found that the remedy claimed by the Applicant flowed from conduct that fell within the employment function mental stress exclusion and then found that the WSI Act was the appropriate forum for the Griever's claims for damages.

7We agree with the Applicant.

93In its essence, the Court directed the Vice-Chair to decide whether or not the employer's direction of the workplace, which created what Vice-Chair Carrier considered to be a poisoned work environment, was a disguised WSIA claim. If it is not, then the WSIA is not the correct forum for the grievor's claims for damages. In his reconsideration decision, the Vice-Chair concluded, after an extensive review of the jurisprudence of the GSB and the WSIAT, that the employer's actions in those circumstances were exempted from the jurisdiction of the WSIA by virtue of the employment function bar. This is addressed at paragraph 69 as follows:

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 Griever'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 Griever'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.

94Contrary to the submissions of the employer here, that case does not turn on the fact that the original accident occurred out of the workplace. It thoroughly analyzes the applicability of s.13(5) in circumstances similar to those at play here and finds, as do I in these circumstances, that the grievor would not be entitled to WSIA benefits because of s.13(5). Morningstar establishes that even if it had occurred in the workplace, those facts could feed both a claim for WSIA benefits and claims for breaches of the collective agreement, express or implied.

Ottawa and Brazeau

95Paragraph 14 of the employer's written submissions in reply deals with the applicability of Ottawa and Brazeau.

14. Arbitrator Slotnick spends a considerable amount of time reviewing the facts and the jurisprudence. But regarding the Union’s subsection 13(5) argument, Arbitrator Slotnick dispatched it with one paragraph in a decision that is 24 pages long. Arbitrator Slotnick stated that the “mental stress claim here is for or by reason of the accident.”12 While succinct, this conclusion is consistent with the conclusion in Brazeau that once an employee is within the WSIB regime, section 13(5) does not operate to remove the statutory bar against claiming damages that are in whole or in part a result of a claimed work-related personal injury.

In both cases, arbitration in Ottawa and court action in Brazeau, the proceedings were not permitted to go forward because they were not separate and apart from the WSIA jurisdiction.

96What distinguishes Ottawa and Brazeau in this matter is that here the Case Manager's Decision recognized the traumatic psychological injuries resulting from the assault and threat of assault and accepted that the ongoing actions of the employer were outside the WSIB's jurisdiction because of the employment function bar. In either a common law setting or a collective agreement setting, the employer's behaviour would be within the parameters of the employment function bar of s.13(5) of the WSIA. It was the case in Brazeau that the civil claim for damages for mental stress was found to have occurred "for or by reason of the accident". The employee had claimed recognition for Traumatic Mental Stress but was denied because there was no "sudden and unexpected traumatic event (paragraph 8). The WSIAT dealt with the applicability of s.13(5) at paragraphs 58 and 59 as follows:

58The worker’s civil action for damages for mental stress is based on events which occurred while the worker was in the course of her employment; the right of action for damages for mental stress is statutorily barred because it relates to the personal injury which occurred while in the course of employment. It arises “for or by reason of an accident.” Having fallen within the scope of the WSIA, the limit to entitlement set out in section 13(5) does not operate to negate application of the statutory bar.

59Put another way, the determination of whether an action is “for or by reason of an accident” is not contingent on the remedy. The claim for damages for the personal injury arises “for or by reason of an accident” since the worker’s mental stress is allegedly related to the actions of the Applicants while in the course of employment. The statutory bar applies regardless of the possibility that section 13(5) may operate to remove the worker’s entitlement to benefits. In this regard, I note that in University of Saskatchewan v. The Workers’ Compensation Board of Saskatchewan, 2009 SKCA 17, the Court of Appeal for Saskatchewan considered the statutory bar in that province’s workers’ compensation scheme and relied on the Supreme Court of Canada’s decision in Beliveau St-Jacques v. Fédération des employées et employés de service publics Inc., 1996 CanLII 208 (SCC), [1996] 2 S.C. R. 345 in concluding:

I note also that this case is helpful in that it makes clear that the statutory bar applies in relation to the underlying cause of action, and does not depend on whether the remedy sought in the proposed civil action is one that is not available under the workers’ compensation legislation.

[Emphasis in original]

97In Brazeau the panel takes an all or nothing approach. That is, it says that s.13(5) does not negate barring the action, which the panel ultimately does, and once the bar is applied, it applies not withstanding that s.13(5) may operate to deny benefits for actions that are within the employment function. The effect is to read s.13(5) out of the WSIA. In Brazeau the mental stress claims were determined to be an “accident” arising out of and in the course of employment, thereby within the purview of the WSIA. In Brazeau the worker made a claim that was denied – a claim for traumatic mental stress (TMS). With the denial of the claim, on the authority of Brazeau, s.13(5) is neutralized. The case is of most interest here because it treated as irrelevant the allegations in the statement of claim “that a poisoned work environment hostile to the worker’s continued employment was present.” Paragraph 6 reads as follows:

6Because this decision relates to an application for a declaration that the civil action is statutorily barred, and not to the alleged facts which form the basis of that action, it is unnecessary to detail the allegations that a poisoned work environment hostile to the worker’s continued employment was present. Briefly stated, the principal events which are alleged to constitute harassment and of the creation of a poisoned work environment are the following:

• a workplace meeting between the worker, her supervisor and two co-workers, on March 13, 2015. During this meeting the worker’s absences for health reasons and complaints relating to the worker not doing her share of the work duties were discussed.

• the worker’s refusal to work with a therapy dog;

• two disciplinary letters dated May 30, 2016; and

• a discussion, on June 2, 2016, between the worker, the supervisor and the executive director in relation to the disciplinary letters.

(emphasis added)

It begs the question to bar an action without considering "the facts which form the basis of that action”.

98As set out above, the employer here relies on Brazeau for the proposition that s.13(5) does not operate to allow any damages where the employee has fallen within the scope of WSIA (paragraph 16, Employer’s Reply Submissions) in any fashion. The employer here asserts that it is immune from recovery by the grievor for its management actions even though the WSIB has not recognized the behaviour to be an accident.

99The WSIAT did not trouble itself with any consideration of the allegations of a poisoned workplace environment, the facts of which were apparently set out in the statement of claim. That is, the decision is focussed only on the claim for TMS. With that context in mind, the decision holds that the TMS claim, which was denied, neutralizes consideration of any management actions excluded by s.13(5). Here, the employer relies on the excerpt in paragraph 59 of Brazeau, above, which cites the Supreme Court of Canada decision in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., 1996 CanLII 208 (SCC), [1996] 2 SCR 345 for the proposition that an action barred by the Worker’s Compensation Act doesn’t permit “recovery for the improper exercise” due to the exercise of management functions, as set out in s.13(5). It says that management is thereby sheltered from being found to be at fault in a no-fault scheme. However, having brushed off the poisoned work environment allegations as being of no moment, the panel in Brazeau fails to even consider the type of action and nature of compensation offered, or not offered, with respect to the facts pleaded in support of the poisoned work environment claim. We know from Morningstar at its paragraph 54 that such a failure is a reversible error. Brazeau makes no contribution to understanding the scope of s.13(5). What it does do is underscore that a poisoned work environment was not something that was covered by the WSIA.

100In Monk, Vice-Chair Gray referred, at paragraphs 101 through 106, to Béliveau and University of Saskatchewan as aids to interpreting whether the statutory bar to suing an employer applied to the collective agreement context, and he concluded that it did apply. The decision of the WSIAT in Brazeau also considers the effect of University of Saskatchewan and Béliveau.

101Paragraph 52 of the University of Saskatchewan report captures the ratio of the case and paragraph 55 applies it to the facts there at play. They read as follows:

52The historical trade off referred to by Sopinka J. in Pasiechnyk, supra, goes further than the mere prevention of double compensation to a worker who suffers a workplace injury. It gives the Board exclusive jurisdiction over all claims of workplace injury, including the jurisdiction to determine whether such injuries have occurred, and thereby protects employers, who pay into the fund, from any civil liability in relation to workplace injury claims—i.e., claims that, if established, are compensable under the Act. The Board therefore erred in its interpretation of the law in assuming that if an alleged injury was found not to be compensable under the Act solely on the basis that the claimant had failed to establish that, in fact, the injury had occurred, the bar to the civil claim did not arise. The question the Board should have asked was whether the claim, if established, is one that would be compensable under the Act.

[emphasis in the original]

55In the case at bar, it was incumbent on the Board to consider whether the injury alleged in the grievance arbitration was one that fell within the exclusive jurisdiction of the Board. That question is not answered by simply noting that the claims advisor had denied compensation for, in this case, that denial was not based upon a conclusion that the alleged injury fell outside the scope of the Act. To the contrary, the Claims Entitlement Specialist, like the arbitrator, concluded that “workplace injury” includes stress related illnesses caused by workplace harassment. Accordingly, the Claims Entitlement Specialist did, in fact, find that the alleged injury fell within the scope of the Act. The claim was then denied on the basis that the allegations of workplace harassment, and psychological injury caused by the claimant’s perception of such harassment, had not been proven. These determinations fall within the exclusive jurisdiction of the Board, pursuant to s. 22(1) of the Act:

[emphasis in the original]

102As was the case in Brazeau, the considerations in play in Saskatchewan involved a situation where the concern was with claims that if established are compensable under the WSIA. That is, is it a claim over which the WSIB, in our case, would have jurisdiction? The Worker’s Compensation Board of Saskatchewan (WCBS) had erroneously held that if your claim was denied, recourse could be had to the courts. The Court of Appeal of Saskatchewan decided that the WCBS had the sole jurisdiction to make that determination. If it was a WCBS claim and it wasn’t made out before the WCBS, then, not surprisingly, the claimant could not try their luck in another forum. The case is about the statutory bar to bringing an action for matters within the jurisdiction of the WCBC, not about matters that are removed from the Board’s jurisdiction such as those in s. 13(5) in this matter.

103The employer here relies on the decision in Brazeau, at paragraph 59, which states that the conclusion of the Court in Saskatchewan, at paragraph 44 of the report, relies on the Supreme Court of Canada decision in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., 1996 CanLII 208 (SCC), [1996] 2 SCR 345, and sets out from Béliveau the exception relied upon. That statement is a mouthful that needs unpacking.

104Paragraph 44 of Saskatchewan is best understood in its context, as follows:

41The judgment of Sopinka J. in Pasiechnyk is of assistance in another even more significant respect, however, insofar as it sets out the history and importance of the legislative scheme under the Act, and the “historic trade-off” reflected in the bar to actions against employers in respect to workplace injuries. This background is significant in relation to the interpretation of the relevant provisions of the Act.

42As both the arbitrator and the chambers judge pointed out, the case law also makes it clear that the statutory bar in the Act applies to bar claims asserted in court actions but also claims asserted by way of grievance arbitration. In Beliveau St-Jacques, supra, the plaintiff brought an action claiming punitive damages for harassment in the workplace. The Quebec workers’ compensation legislation contained a statutory bar similar to s. 167 of the Saskatchewan Act, providing as follows:

438. No worker who has suffered an employment injury may institute a civil liability action against his employer by reason of his employment injury.

43The majority ruled that, while exemplary damages are not necessarily compensatory, they cannot be dissociated from the underlying civil liability that is banned under the Quebec workers’ compensation regime. A subsidiary issue raised was whether or not the matter should have proceeded through grievance arbitration as opposed to the courts. The majority of the Court held that the issue was moot, given their ruling that civil liability was barred. However, Gonthier J, writing for the majority, clarified:

…it is understood that the arbitrator could not have awarded damages for the prejudice suffered as a result of the employment injury. The exclusion of a civil liability also applies to the grievance arbitrator. [at para 136]

44I note also that this case is helpful in that it makes it clear that the statutory bar applies in relation to the underlying cause of action, and does not depend on whether the remedy sought in the proposed civil action is one that is not available under the workers’ compensation legislation.

45With this background in mind, I turn to consideration of the decision of the WCB that is before us. That decision is set out in full above. On its face, the decision is puzzling. In its conclusion, the Board held this:

There is no work injury in accordance with Section 29.

The grievance brought against the University of Saskatchewan by Ms. Bowman and her union representatives does not fall within the jurisdiction of the Workers’ Compensation Board or the Act. Accordingly, the Board cannot rule in this matter.

46First, assuming for the moment that the Board in fact intended to refuse to rule on the application before it, there can be little doubt that it erred in so refusing and that this is an error in relation to a “true” jurisdictional question, in the sense explained in Dunsmuir. Section 168 of the Act provides that any party to an action may apply to the WCB for adjudication and determination of the question of whether the action is one barred by the Act. The Courts have held that the WCB’s jurisdiction in this regard is exclusive. Accordingly, were the Board satisfied that the claim asserted in the action was one that was not in relation to a workplace injury compensable under the Act, the proper decision would have been to rule that the action was not barred, rather than to refuse to rule on the matter. To refuse to rule on the matter is to wrongfully refuse to exercise the exclusive jurisdiction conferred on the Board by the statute

47In argument before us counsel for the Board attempted to argue that there was no question properly before the Board, for a grievance arbitration is not an “action”. This argument, in my view, is in error. On this point, I agree with the arbitrator and the chambers judge that Beliveau St-Jacques is authority for the proposition that the term “action” is broad enough to encompass remedies sought for a workplace injury by way of the grievance procedure and arbitration. Accordingly, it was incumbent on the Board to consider whether and to what extent the grievance raised issues within the exclusive jurisdiction of the Board.

105These paragraphs from Saskatchewan underscore the importance of considering the workers' compensation scheme as a whole. The background to the Court's decision included the historic trade-off, that the civil remedy sought cannot be what stands the civil action apart ("dissociated") from the compensation scheme; arbitrations are dealt with as actions, and the unavailability of the civil remedy within the compensation scheme is not, in and of itself, determinative in applying the statutory bar.

106The Court goes on to consider the decision of the WCB at issue. There the Claims Entitlement Specialist had acknowledged that psychological injury caused by harassment was a compensable injury, but denied the claim because there was neither evidence of harassment in the workplace, nor medical evidence that the claimant's depression was caused by her perception of conditions in the workplace. On appeal to the Workers' Compensation Board, the Board decided that by virtue of the Claims Entitlement Specialist's denial, the statutory bar did not apply. That is, as set out above, the claimant could try again in a civil action. The Court of Appeal in Saskatchewan held that to be a reversable error and quashed the Board's decision.

107What is important in Saskatchewan for the instant matter is that not all denials of benefits bar the civil action. Here the employer says that any involvement of the WSIB bars the 'action' and also neutralizes the effect of s.13(5). However, paragraph 53 of the Court's reasons recognizes that denial of a claim might amount to a finding that the Act does not apply, which is what the union submits is the case here. Paragraph 53 reads as follows:

53Of course, in some circumstances, denial of recovery under the Act would be conclusive, for such denial might be, and often would be, based upon a conclusion that the injury alleged does not fall within the Act, and therefore is not within the jurisdiction of the Board. This might be because the alleged injury is not considered to be a workplace injury (an issue that arises, for example, when a worker is injured traveling to or from work) or because the employer, or the type of injury alleged, is not covered by the Act. Clearly, where the injury alleged is not “compensable” in this sense, that is conclusive of the issue.

(emphasis added)

108Here the injury does not fall within the scope of the WSIA because the WSIA itself excludes it by operation of s.13(5).

109The decision in Béliveau, which was also quoted in Saskatchewan, was a determination of whether, in addition to benefits under the workers' compensation scheme in Québec, there was a standalone cause of action under the Charter of Rights and Freedoms for the sexual harassment and harassment in the workplace suffered by the claimant/litigant. Put differently, whether the Charter action was separate and apart from the workers' compensation scheme. The Supreme Court of Canada decided that it did not stand apart. Paragraph CXXX reads as follows:

CXXX. Sections 438 and 442 AIAOD must necessarily be the starting point for the analysis. The civil immunity of employers and co‑workers under these sections is broad in scope and applies to an action for damages under the Charter based on the events that gave rise to the employment injury. There is accordingly no doubt that the action brought by the appellant in the Superior Court fell within the exclusion in s. 438 in so far as it involved the respondents. The appellant was unquestionably seeking, as shown above, to bring a civil liability action. She was suing the Confederation of National Trade Unions, for which she had worked since 1978. She was also claiming compensation from the FEESP, for which she had worked since 1986 pursuant to an agreement with the Confederation of National Trade Unions. This agreement provided, inter alia, that the Confederation of National Trade Unions and the FEESP would share the expenses related to the appellant's employment equally and placed the appellant under the joint responsibility of the two organizations' servicing representatives. In this Court, the parties did not question the fact that the FEESP, like the Confederation of National Trade Unions, employed the appellant. The Superior Court therefore had before it a civil liability action in which the appellant was seeking damages from her employers for the sexual harassment and harassment in the workplace she alleged she had suffered. Since the events relied on by the appellant in support of her action had already been characterized by the competent authorities as an employment injury within the meaning of the AIAOD, the principle of an employer's civil immunity had to be applied.

(emphasis added)

110In Béliveau the employer was immune from the civil suit for damages “for sexual harassment in the workplace" because those very same injuries had been found “by the competent authorities” to be an employment injury within the meaning of the Act respecting industrial accidents and occupational diseases, (see CLQR c A-3.001 (AIAOD)). That is, they were not separate and apart.

111These cases are about the exclusive jurisdiction of compensable workplace injury determination resting with the specialized tribunal. They also take place in the context of the evolving issue of the appropriate standard of review. University of Saskatchewan also considered the decision of the Supreme Court of Canada in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, 1997 CanLII 316 (SCC). It is from Pasiechnyk and Béliveau that Vice-Chair Gray drew his observations regarding the history of the trade-off that underlies the workers’ compensation law, which is the fabric of the dispute before me.

112Pasiechnyk is largely concerned with privative clauses and the status of the government as employer. What drew my attention in the report is paragraph 70 in the concurring reasons of McLachlin J, as she then was:

70 A similar fact-oriented test for jurisdictional competition in the area of labour agreements was enunciated by this Court in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, at para. 68: “whether the conduct giving rise to the dispute between the parties arises expressly or inferentially out of the collective agreement between them”. The parallel test for exclusive jurisdiction under the provisions of the Act at issue in this case would seem to be whether the conduct giving rise to the dispute between the parties arises out of the regime established by the Act, having regard to the events giving rise to the claim and the relationship between the parties. I am satisfied that the facts in this case brought the dispute within that ambit.

113Applying McLachlin J’s reasoning in paragraph 70, and having regard to the conduct giving rise to the dispute between the parties, in my view I have the jurisdiction to award damages for these breaches that arise both expressly and inferentially out of the collective agreement. This is so because the conduct giving rise to the dispute between the parties does not arise expressly or inferentially out of the exclusive regime of the WSIA as it is explicitly exempted from that regime by operation of s.13(5) of the WSIA.

114In any event, Brazeau was released August 25, 2021, with post-hearing activity completed on January 6, 2021. Morningstar was released August 18, 2021, one week earlier. The panel in Brazeau did not have the benefit of the Court’s reasons in Morningstar. In that light, and for the reasons above, Brazeau appears to be wrongly decided.

Banwait

115Banwait is a decision of the WSIAT that applied the principles discussed in Morningstar. In Banwait the worker sued her employer in which she sought damages “for her claimed constructive dismissal that she asserts resulted from the manner in which she was treated by the [s.31] applicant during the course of her employment." (at paragraph 4). The tribunal notes at paragraph 12 that chronic traumatic mental stress is compensable:

12Since January 1, 2018, subsection 13(4) of the Act has been explicit that, subject to some limitations as described in subsection 13(5) of the Act, a personal injury includes a chronic or traumatic mental stress injury arising out of and in the course of employment.

(emphasis added)

116As discussed, the initial entitlement decision in the instant matters recognized a Traumatic Mental Stress Injury as a result of two specific traumatic events and not for any subsequent employer actions in managing the workplace. In Banwait damages for wrongful dismissal were permitted to proceed. The panel also recognized that aggravated damages are potentially awarded in wrongful dismissal claims “that are not based upon the existence of a personal injury.” (paragraph 32). The panel recognized that not only traumatic mental stress, as recognized here, but also chronic mental stress may be compensable (paragraph 38). The test enunciated by the panel with respect to aggravated damages is set out at paragraph 39 and 40 as follows:

39The Panel therefore finds that in order for a claim for aggravated damages based upon the conduct of the employer in the workplace to be able to survive the restrictions on civil actions found in the WSIA the claim for aggravated damages must exist separate and apart from work related mental stress that has necessitated health care or that has caused the worker to not be able to earn full wages.

40For the sake of clarity the Panel wishes to emphasize that in stating this a distinction is to be drawn between:

• an inability to earn full wages as a result of mental stress related health reasons for which workers’ compensation benefits may be available; and

• a choice not to work because of the existence of circumstances that would support a claim for constructive dismissal.

(emphasis added)

117The panel in Banwait uses the same test “separate and apart” as enunciated in the GSB jurisprudence exemplified by arbitrator Lynk in Adams, and indeed in Monk, as well as in Ottawa Hospital by arbitrator Slotnick, to bar a claim for aggravated damages. As for the distinction set out in paragraph 40 of Banwait, the second choice is applicable here because the grievor made a "choice not to work because of the existence of circumstances that support a” grievance for breaches of the collective agreement article 9.1 and the implied term of the duty of care to maintain a civil workplace.

118The panel in Banwait sought submissions from Tribunal Counsel as an aid to their deliberations. Tribunal Counsel provided an analysis that included consideration of Deol, (infra). At paragraph 45 of Banwait the panel notes that Deol was cited with approval at paragraph 117 of Morningstar. Paragraph 117 from Morningstar reads as follows:

117In Deol v. Dreyer Davison LLP, [2020] B.C.J. No. 843 (S.C.), at para. 93, the British Columbia Supreme Court held that “general damages for breach of an employment contract stand in place of reasonable notice and are distinct from claims for personal injury,” so that the plaintiff’s claim for constructive dismissal was permitted to proceed, though her claims for damages for personal injury were left to the worker’s compensation tribunal. In Ashraf v. SNC Lavalin ATP Inc., 2015 ABCA 78, the Alberta Court of Appeal allowed a claim for constructive dismissal to proceed, as it claimed compensation distinct from that available under the Alberta Workers’ Compensation Act. The Court noted, at para. 11:

The WCA asserts no jurisdiction to compensate claims for constructive dismissal and it is not suggested that there exists a collective agreement or any statutory scheme which could assume jurisdiction to address that claim. If the judgment appealed from were allowed to stand, the appellant would be left without a forum to advance that claim, as would every other claimant for constructive dismissal who alleged that the workplace abuse leading to termination also caused stress or other psychological injury. With respect, we conclude the chambers judge erred in striking the claim as it relates to the claim for constructive dismissal.

119In this quote from Morningstar the Divisional Court’s reliance on the Alberta Court of Appeal’s decision in Ashraf v SNC Lavalin ATP is particularly apt in that it reinforces the principle that the remedial jurisdiction available to a labour arbitrator includes addressing types of damages claims such as might arise in an action for constructive dismissal. Also, if such claims are not allowed to proceed, either by action at common law or grievance arbitration, there would be no forum to advance the claim in a situation where, as is the case here, the workers' compensation scheme asserts no jurisdiction.

120After considering Deol the panel in Banwait determined that it did not apply to the facts of the case before it and in doing so explicitly carves out the s.13(5) jurisdiction in the very fashion argued for by the union here. Paragraph 49 reads as follows:

49These facts make the case inapplicable to the circumstances in the present application before the Panel. In this regard the Panel notes that subsection 13(5) of the WSIA specifically exempts mental stress injuries caused by an employer’s act of terminating a worker from eligibility for entitlement to benefits under the Act. If the termination by the employer cannot give rise to compensation entitlement for mental stress, the employer is not be [sic] protected by the WSIA from a civil suit for damages caused by the manner in which the termination occurred. In the present application, on the other hand, the actions of the applicant that are alleged to have caused psychological injury are acts of harassment that are alleged to have occurred in the course of employment. If those actions are shown have actually occurred and caused psychological injury, entitlement to benefits will exist under the WSIA.

(emphasis added)

121Accordingly, subsection s.13(5) of the WSIA carves out “mental stress injuries caused by an employer’s act of terminating a worker.” In Morningstar at paragraphs 119 through 121 the Court also endorses moral, aggravated, and punitive damages in a constructive dismissal situation as separate and apart from a claim made pursuant to the WSIA, unless it is a disguised claim in tort. The Court also elucidates the validity of the test in Monk, in paragraph 109, supra, that says, “Where a claim for damages is made on behalf of a worker who has suffered a compensable injury or illness as a result of a breach [or Article 18.1/9.1], 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.” In doing so the Court also dealt with the artificial distinction between wrongful dismissal and constructive dismissal. Paragraphs 119 through 121 of the Morningstar decision read as follows:

119Whatever linkage the claims for moral, aggravated, or punitive damages might have to any tort action subsumed under the Act, the common law relating to constructive dismissal demonstrates their relationship to that action in the applicant’s claim. Unless that claim is shown to be a disguised claim in tort, the nature of the damages sought, which are not available under the Act, should have guided the WSIAT to consider the bona fides of the applicant’s claim for constructive dismissal, and not simply factual linkage. Not to have done so is unreasonable.

120There is another effect to the distinction drawn by the Vice-Chair in the first decision, in that it must lead to an absurd conclusion. At para. 44, the Vice-Chair dismissed as hypothetical and speculative the applicant’s argument that “the constructive dismissal claim would exist even if [the applicant] had not suffered mental injuries.” To the Vice-Chair, the fact that the applicant did also claim a mental stress injury crippled such an argument and permitted it to be ignored. But considering a hypothetical can be a useful tool to ferret out illogic, such as that involved in the artificial distinction in para. 30 that the applicant’s claim is not for “wrongful dismissal in the usual sense, but rather is for constructive dismissal.”

121During the course of oral argument, Hilton’s counsel was asked what would be the result in circumstances such as those alleged by the applicant, but if instead of the applicant resigning, she were called into her manager’s office and told, “You smell. You’re fired.” The response, which appears to accord with the logic in the decisions under review, was that a wrongful dismissal action could proceed. The facts are otherwise identical but for a few words spoken by a manager, but a completely different result obtains. So it is that the blind adherence to a test of factual linkage disregards important facts in the case, the policy and wording of the legislation, and draws a legal distinction where none reasonably exists.

122That is, the Court says that instead of following “the blind adherence to a test of factual linkage”, it is necessary to have regard to “the important facts in the case, the policy and wording of the legislation.” Using the hypothetical example as an appropriate tool in the matter before me, the breaches of the collective agreement and the duty of care would exist even if the grievor had not suffered the traumatic mental stress injuries, and remedies would follow.

123The panel in Banwait also found that the punitive damages claimed were not compensatory and therefore were not precluded by the WSIA. The panel also explained what it considered to be compensatory damages and therefore statute barred. Those submissions are set out in paragraphs 57 through 61 as follows:

57The punitive damages claimed are not compensatory. They are instead intended to punish the conduct of the defendant/applicant. The availability of such damages turns on the conduct of the defendant/applicant. It is a head of damages that the plaintiff/respondent may pursue in a wrongful dismissal action and does not require proof of an injury being sustained by the plaintiff/respondent. The Panel notes that a claim for punitive damages was allowed to proceed in the Morningstar decision of the Divisional Court as an element of the wrongful dismissal claim as well as Decision No. 616/21 which also examined the issue of whether the damages being claimed were in respect of the worker’s injury in that claim.

58The Panel concludes that the WSIA does not preclude the respondent’s pursuit of punitive damages in her wrongful dismissal action.

59The remaining heads of damage contained in the Statement of Claim that have not previously been addressed in this decision all appear to the Panel to be compensatory. By compensatory the Panel means that for entitlement to damages to be established the plaintiff is required to demonstrate the harm that she has experienced as a result of the applicant’s actions and that she is entitled to receive compensation for.

60The claims for damages in the Statement of Claim for a breach of the employment contract other than a lack of notice being provided, for violation of the Occupational Health and Safety Act and for the applicant’s breach of its common law obligation to perform its contractual obligations honestly, do not explicitly state what harm or losses the respondent claims occurred as a result of those claimed breaches.

61When the Statement of Claim is examined there is no clear statement that the plaintiff experienced a loss of any nature related to these breaches other than mental distress. It is furthermore alleged that the mental distress that the plaintiff experienced was such that it required her to receive medical treatment and resulted in the plaintiff being unable to work for medical reasons. The Statement of Claim includes the following statements (with emphasis added):

(emphasis added)

124The panel's concern is that the facts alleged in the Statement of Claim, taken as true, bring the matter within the WSIA. The panel finds at paragraph 74 (infra) that they are a disguised tort claim. The reasons of the panel in Banwait go on to include excerpts from the Statement of Claim. Those excerpts are set out below; the emphasis in the quotes is that of the panel. The reasons of the panel then state in paragraphs 62, 63 and 64 that the pleadings, if taken to be proven, would found a compensable claim pursuant to the WSIA. The excerpts from the Statement of Claim and paragraphs 62, 63 and 64 are as follows:

9. The Plaintiff pleads, and the fact is, that from December 1, 2015 to October 21, 2018, the individual Defendant engendered a poisoned work environment by engaging in abusive and harassing behaviour, which included but was not limited to the following:

a) September 2016—The Plaintiff was subjected to highly humiliating and inappropriate comments by A., which resulted in the Plaintiff being admitted to the hospital.

b) January 2017—The Plaintiff’s request to attend her grandmother’s funeral was unjustly denied, resulting in the Plaintiff feeling distressed and dejected.

c) May 2018—The Plaintiff’s work schedule was significantly amended without notice, where reduction in work hours per week resulted in reduced earnings.

d) June 2018—The Plaintiff attempted to resolve her schedule discrepancy however A. found it as an opportunity to disparage the Plaintiff in the presence of her colleagues.

11. On account of the poisoned and hostile work environment that the Plaintiff endured during her employment with the Defendant, the Plaintiff began to suffer from severe anxiety and depression, for which she sought and received medical treatment and therapy.

12. The Plaintiff pleads, and the fact is, that the Defendant’s Store Manager, Human Resources Manager, Associate Manager and District Manager —along with her colleagues—were aware, or ought to have known, that the Plaintiff was extremely uncomfortable with the inappropriate comments, bullying and other misconduct perpetrated by the individual Defendant’s employee, A. However, the Defendant failed to take any steps to remediate the ongoing harassment.

13. On June 12, 2018, the Plaintiff made another attempt to amicably resolve the issues in her work schedule and asked to discuss the matter in private with A. However, he made disparaging comments about the Plaintiff in the presence of her colleagues. This made the Plaintiff feel distressed, embarrassed and anxious.

14. As a result of the ongoing public humiliation, verbal abuse and mistreatment by A., the Plaintiff was unable to continue working thus forced to take a leave of absence for medical reasons.

15. The Plaintiff states that the Defendant had an obligation to maintain a workplace free of harassment, but failed to do so. The Plaintiff pleads that this failure constituted a breach of the Defendant’s employment contract with the Plaintiff, for which she is entitled to general damages for bullying and harassment, as set out above.

16. The Plaintiff states, and the fact is, that being forced to work in an environment poisoned by discriminatory and abusive behaviour from her supervisor caused the Plaintiff to suffer from severe stress and anxiety, and significantly impacted her health and wellbeing.

17. The Plaintiff continues to be in poor health, solely as a result of the actions and/or inactions of the Defendant or for those in law that the Defendant is vicariously liable. As such, the Plaintiff claims damages for mental distress as against the Defendant, in the amount of $10,000.00.

62Aside from the financial loss caused by the alleged lack of notice of termination all of the other loss and harm that the plaintiff claims to have experienced as a result of the actions of the defendant and which form the basis for the claim for damages are with respect to some form or other of mental distress.

63It is furthermore a severe mental stress that it is asserted resulted in the need for health care and prevented the plaintiff from working. If these assertions can be shown to be accurate they would result in the plaintiff having entitlement to workers’ compensation benefits under the WSIA.

64Severe anxiety and depression which is caused by harassment in the course of employment is clearly in the Panel’s view a work-related injury requiring medical treatment for which entitlement exists under the WSIA.

125After having reviewed the emphasized pleading from Banwait it is clear to me that the facts in issue there involved direct management actions of harassment of the worker that resulted in the need for medical attention. The harassment by management is patently egregious and could not be saved by the employment function bar of s.13(5). The harassment in Banwait is not the type of harassment that is under consideration here. Here I am dealing with indifference that I have found to be breaches of the collective agreement and the duty of care. That indifference by management to the continued harassment of the grievor by his antagonists, does not amount to the degree of harassment evident in Banwait or Morningstar, which was to such a degree as to attract the potential or actual application of the WSIA. To be clear, neither the subsequent harassment by the grievor's antagonists nor the indifference of management sounds in benefits pursuant to the WSIA.

Harassment Exists on a Continuum

126In Banwait and Morningstar, the harassment claims were found to be subsumed under the WSIA. The result in Banwait is at paragraphs 73 and 74:

73For the reasons specified above, the Panel concludes that the WSIA removes the respondent’s right of action to pursue damages against the applicant for,

• breach of the employment contract (other than for the lack of sufficient notice of termination);

• breach of its statutory obligations under the Occupational Health and Safety Act;

• breach of its common law obligation to perform its contractual obligations honestly;

• mental distress; and

• aggravated damages.

74We have arrived at this conclusion as the claim for damages associated with these breaches as asserted in the Statement of Claim is not associated with any loss experienced by the respondent except losses that would constitute a personal injury for which workers’ compensation benefits would be payable under the WSIA. Although some of these matters have been framed as breaches of contract or breaches of a statutory duty, in the absence of any claimed damages other than personal injury, the Panel finds that these claims are in essence disguised tort claims for a personal injury sustained in the course of employment.

127The result in Morningstar is at paragraphs 125 and 126:

Conclusions

122Such reasoning must inevitably lead to unreasonable conclusions, in that it encourages employers not to openly fire unwanted employees and suffer a claim for wrongful dismissal, but rather to make those employees’ lives so miserable in the workplace that they can be made to suffer chronic stress and be driven to resign without any fear of legal reprisal, all blithely justified under the banner of the historic trade-off.

123In this case, the applicant’s claim for constructive dismissal was coupled with a harassment claim and other claims. The applicant concedes, and I agree, that the harassment and other claims have been properly barred under s. 31 of the Act and cannot proceed. However, the WSIAT in both decisions under review arrived at the unreasonable conclusion that it was also appropriate to bar the applicant’s claim for constructive dismissal and attendant damages.

124The applicant’s claim for constructive dismissal deserves the opportunity to be tested in the courts. There is no indication that the claim is a colourable attempt by the applicant to skirt the historic trade-off; the claim for constructive dismissal does not appear to be a tort claim in the guise of an employment or contract dispute. The damages sought by the applicant are not benefits available under the Act and represent headings of damage for constructive or wrongful dismissal that have been recognized in Canadian law.

Decision on review

125For the above reasons, on review I would find that those portions of WSIAT Decisions No. 1227/19 and 1227/19R that bar the applicant’s claims for constructive dismissal and for aggravated, moral, and punitive damages are unreasonable and must be quashed.

126While ordinarily it would be appropriate to remit this matter to the WSIAT for reconsideration, I decline to do so. In my view, a proper consideration of the issues of this case must inevitably lead to the conclusion that the applicant’s action in constructive dismissal as against Hilton, and her claims for aggravated, moral, and punitive damages must be permitted to proceed.

128As set out above, it is my view that the Claims Manager had before her a record upon which she recognized entitlement for Traumatic Mental Stress relating to two traumatic incidents, but she did not recognize entitlement for chronic mental stress as a result of ongoing harassment, because that fell under the rubric of the employment function bar.

129Banwait recognized the existence of the carve out of s.13(5) but found that it did not apply in the facts from the statement of claim when assumed to be true. Those facts disclose egregious and abusive conduct by the employer that is not part of the employment function; accordingly, s.13(5) cannot apply.

130Morningstar was the judicial review of WSIAT Decision No. 1227/191, 2019 ONWSIAT 2324 and its reconsideration by the same panel in WSIAT Decision No. 1227/19. In decision No. 1227/19 the panel summarized the facts of that situation in paragraphs 4 through 11 as follows:

4The particulars of the incidents alleged by the Respondent, in the Statement of Claim in the above noted action, are summarized as follows.

5The Respondent claimed that housekeeping employees subjected her to abusive, humiliating and cruel conduct over the course of 17 months and that this conduct was supported and reinforced by the Applicant’s management. The conduct began with an incident in which a number of employees sprayed the Respondent with Lysol claiming that she “smelled.” The Respondent was a cancer survivor and was concerned that an unusual odour could indicate the return of her cancer. She advised the employees that she had made an appointment with her doctor in advance of the incident as a result of her concern and asked that they “cease the harassment.” She saw her doctor and was reassured she was in good health. The odour went away after changing the medication the Respondent had been prescribed. However, the employees continued to complain about her odour and later in the month complained to the housekeeping manager. The Respondent claims that in a meeting with the housekeeping manager she was asked if she showered every day, if she washed her uniform every day and whether she had considered “using feminine products such as douches, sprays, pads or baby powder.” The Respondent claims that she was “shocked and humiliated by the questions” put to her by the housekeeping manager and remained concerned that her cancer had returned despite the reassurances by her doctor.

6The Respondent further claimed that in early July 2016 the housekeeping employees began leaving towels on the chair on which the Respondent sat and, on some occasions, the Respondent found bathmats placed on her chairs. She claimed that this conduct went on for the next 15 months. In a subsequent meeting, the housekeeping manager again advised the Respondent that some employees had complained that she had a “certain odour” and again asked if she had considered using feminine products. The Respondent advised that there was no odour, she continued to be screened once a year for the return of her cancer, and could not use feminine products due to the type of cancer she suffered. She advised, however, that she would return to the doctor again to ensure there was nothing medically wrong. She was again reassured by her doctor that she had “a clean bill of health.”

7The Respondent claimed that following the second meeting, the other employees continued to place towels or bathmats on her chair on a daily basis, spread rumours that she had an odour, spread false rumours about her work performance, made up embarrassing stories involving her work performance which they laughed about in her presence, on one occasion hid her clipboard which contained personal and time sensitive information, and on one occasion placed the wrong work schedule on the scheduling board so that she would record the incorrect schedule.

8The Respondent filed a harassment complaint with the housekeeping manager and subsequently spoke to the Applicant’s then Human Resources director. She was told there would be an investigation. She was told that one of the employees admitted to the clipboard incident but later recanted and the Respondent was asked to apologize to the employee about the clipboard accusation. She was told there would be new chairs in the housekeeping department and was asked if “she could try to work more cohesively with team members.” The Respondent claimed that as a result of the inaction by the Applicant, the harassment and bullying conduct continued. She further alleged that in August 2017 she began to find that the towels routinely placed on her chair had yellow stains on them. The employees accused her of creating the stain on the towels which were often moist after she sat on them. She again went to her doctor who recommended that she take two weeks’ medical leave.

9An internal investigation was conducted and an independent investigation was ordered by the Ministry of Labour following contact by the Respondent. The Respondent claimed that as a result of the stress of the internal investigation, the recommendations and the continuing harassment and bullying she experienced by co-workers and management she went on medical leave which continued until February 16, 2018 when, in consultation with her doctors, she claimed she was unable to return to work due to the harassment, and her fragile mental state resulting from the harassment and bullying to which she was subjected in the workplace.

10The Respondent claimed entitlement to payment in lieu of reasonable notice and that her injuries and damages resulting from the action of the Applicant’s employees and management included diminished self-worth, depression, anxiety, difficulty coping with emotional stress and mental anguish, feelings of guilt and self-blame, insomnia, loss of consortium and loss of enjoyment of life.

11The Respondent filed a claim in April 2018, as set out above, for constructive dismissal, damages for mental stress, moral, aggravated and punitive damages, damages for bullying, harassment and the creation of a poisoned work environment and/or the tort of harassment.

131Not surprisingly, the heartless and horrific treatment of the worker by her co-workers and management, that resulted in her mental stress injury that required medical treatment, was found to be compensable. The conduct of the employer was so palpably egregious that the employment function bar could not possibly apply.

132The degree of harassment in Banwait and Morningstar could not meet the requirements of the employment function bar. The situation in those two matters was squarely within the historic trade-off.

Deslippe and Decision No. 3096/17

133The employer here also relied upon Deslippe v 2037020 Ontario Ltd and Crosby, Decision No. 1232/21, 2022 ONWSIAT 1236. Deslippe also considered Morningstar. In paragraph 53 of Deslippe, the decision acknowledges that s.13(5) is not engaged in that matter, while also acknowledging that s.13(5) removes the jurisdiction to grant benefits from the WSIB for non-egregious management actions:

53The Panel also appreciates that subsection 13(5) of the WSIA states that” a worker is not entitled to benefits for mental stress 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 …”. However, the Respondent’s pleadings never claimed that any such category of exclusion applied to his circumstances.

(emphasis added)

134The panel in Deslippe appreciated that WSIA benefits are not available for mental stress due to employer actions relating to the worker's employment, but, unlike here, the effect s.13(5) was not put before it.

135The employer here also relied on Decision No. 3096/17, 2018 ONWSIAT 1563. I have not found this decision to be helpful as it is primarily concerned with a victim of sexual assaults at work who are entitled to claim benefits under the WSIA (see paragraph 31). Such situations would certainly exceed the limitations of the employment function bar.

Conclusion

136The type of harassment present in Morningstar and Banwait, was shocking and abusive, which is not the situation before me. Harassment is often difficult to recognize in peoples' minor, day-to-day, interactions and events. Each event may appear benign or of little consequence, but, as events accumulate over time, and begin to coalesce into something more sinister, a narrative of harassing behaviour may emerge. Each event is like a single unremarkable bead, but when strung together they are recognizable as a bracelet or necklace that we may then see and understand to be harassment. Of course, a single event may be so egregious or abusive that it can stand alone, like the gem on a ring, but its sparkle is the hallmark of outrageous harassment.

137In the present case, there were two single, traumatic events; the grievor was assaulted and threatened with violence. He received WSIB benefits for those traumatic events. The employer then stood by throughout the time that the grievor remained in the workplace, as the antagonists' seemingly benign harassment accumulated, without helping the grievor, as asked, by altering his schedule, or otherwise sheltering him from the antagonists, and thereby from harm. It exercised its right to manage in a way that denied the grievor the dignity and satisfaction that meaningful work gives to an individual. The grievor liked his job and drew satisfaction from a job well done. He did not want to leave it and he certainly did not expect to be driven from it. I found on the merits that management breached the explicit contractual bargain of article 9.1 and the implied duty of care it owed to the grievor to maintain a civil workplace. Whatever the result is called, be it harassment or a poisoned work environment, it is not compensable under the workers' compensation scheme because it is simply how the enterprise was run pursuant to article 2, the managements' rights clause, and such actions are specifically outside of the jurisdiction of the WSIB by virtue of s.13(5) of the WSIA.

138Morningstar at paragraph 122 says it best when adapted to the present circumstances. To hold otherwise than I have would be to encourage employers to make a workers’ life so miserable in the workplace that they are made to suffer chronic stress and be driven to resign without any fear of legal reprisal, all blithely justified under the banner of the historic trade-off.

139The harassment that was statute barred in Morningstar and Banwait was in a different category than that in play here; those situations sat on a different place on the harassment continuum. To simply call something harassment is not sufficient to prevent a claim from proceeding, or, in this case, to allow the case to be called and then deny a remedy. What is required is to assess whether the conduct complained of invokes not only the workers' compensation scheme, but also a separate, stand-alone claim. The decision-maker is duty-bound to at least look for the evidentiary daylight. I have decided on the merits here that the behaviour of management did not stand up to the light of day, and for that, the grievor may claim damages in the nature of those permitted to go ahead in Morningstar.

140The narrative here is helped by the availability of the Claims Manager's brief decision. However, as Vice-Chair Gray observed in Monk, absent a determination by the WSIB, it falls to the GSB arbitrator hearing the matter to categorize the situation. For the reasons set out above, I have concluded that the WSIB does not have the jurisdiction to award any remedy for the employer's actions in administering the workplace as it chose so to do in the exercise of its management rights set out, or implied, in article 2 of the collective agreement. Indeed, it chose to exercise them by breaching article 9.1 and the implied duty of care to provide a civil workplace. Also, those management actions were not of such a nature as to neutralize the employment function bar of s.13(5).

Decision

141The employer's motion asking for a ruling that monetary damages are not available to the grievor is denied. The jurisdiction to award monetary damages in these matters is not that of the Workers’ Safety and Insurance Board; it is the jurisdiction of the Ontario Grievance Settlement Board.

142I remain seized, if required, to consider and decide upon the nature and quantum of the damages owing. In addition to any damages resulting from the grievor's decision to leave his employment, which is akin to constructive dismissal, the parties should be prepared to address the applicability of damages in the nature of aggravated, moral and punitive damages.

143I also remain seized to deal with any other issues regarding implementation.