Ontario Public Service Employees Union v. The Crown in Right of Ontario, 2019 ONSC 1077
CITATION: Ontario Public Service Employees Union v. The Crown in Right of Ontario, 2019 ONSC 1077
DIVISIONAL COURT FILE NO.: 255/17
DATE: 20190221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, D.L. Corbett and Doyle JJ.
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Applicant
– and –
THE CROWN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES
Respondent
Richard A. Blair and Christopher J. Bryden, for the Applicant
Paul Meier, for the Respondent
HEARD at Toronto: January 14, 2019
Swinton J.:
Overview
[1] The Ontario Public Service Employees Union (the “Union”) has brought an application for judicial review of a decision of the Grievance Settlement Board (the “Board”) dated March 21, 2017 (OPSEU (Patterson) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2017 25459 (ON GSB)). Vice-Chair Briggs upheld the respondent Employer’s preliminary objection to the Board’s jurisdiction to award damages as a remedy for grievances alleging workplace bullying and harassment, because the alleged injury for mental stress was work-related and would be or would have been compensable under the Workplace Safety and Insurance Act, S.O. 1997, c. 16, Sched. A (“WSIA”).
[2] For the reasons that follow, I would dismiss the application, as the Board’s decision was reasonable.
Factual Background
[3] The grievor, a Probation and Parole Officer, brought five grievances in which she claimed that the Employer had failed to deal appropriately with workplace harassment and bullying carried out by her co-workers. She did not allege any conduct was discriminatory under the Human Rights Code, R.S.O. 1990, c. H.19. Rather, she alleged that the Employer had contravened two articles of the collective agreement dealing with workplace harassment and the Employer’s obligation to make reasonable provision for the health and safety of employees. She alleged that she had sought medical attention as a result of the harassment and been prescribed medication. Among the remedies sought, she asked for general damages for pain, loss of dignity and humiliation, and pain and suffering.
[4] The parties agreed that the Board should first determine a preliminary objection respecting its remedial authority. For purposes of the hearing, the Employer agreed to admit the particulars alleged by the Union (and set out in the Board award) as true. The parties also agreed that the grievances would proceed in accordance with Article 22.16 of the collective agreement and, therefore, the decision would be without precedent or prejudice.
The Board’s Decision
[5] The issue before the Board was whether it had jurisdiction to award the damages sought as compensation for injury or illness caused by mental stress arising from the employer’s failure to stop workplace bullying of the grievor.
[6] The Employer argued that the Board did not have jurisdiction because the injury suffered was or would be compensable under the WSIA. The Employer relied on the Court of Appeal’s decision in Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2013 ONCA 406 (“Monk”), which held that the Board did not have jurisdiction to award damages under the collective agreement for compensable injuries to which the WSIA or its predecessor legislation would apply (at para. 5).
[7] In Monk, a number of grievors claimed damages for breach of the health and safety provision of the collective agreement because of exposure to second-hand smoke in the workplace. Vice-Chair Gray of the Board relied on s. 26(2) of the WSIA (and its predecessor), which provides
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 dependant 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.
Section 26(1) of the WSIA provides that “No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board” (meaning the Workplace Safety and Insurance Board).
[8] Subsection 26(2) is often described as the “historic trade-off” in workers’ compensation legislation – that is, the employee’s surrender of a right to sue the employer for work-related injuries in return for a no-fault compensation system funded by the employer. Given this provision (and its predecessor), Vice-Chair Gray stated in Monk, “The proper question is whether an injury or illness of the sort alleged by the grievor would be or would have been compensable under the applicable statute if proven” (2010 CarswellOnt 17779 at para. 111). If so, the Board had no jurisdiction to award compensation for the work-related injury. Such compensation must be sought under the WSIA.
[9] The Court of Appeal upheld a decision of the Divisional Court that upheld the Board’s decision on judicial review, stating at para. 5, “The Vice-Chair was correct in his conclusion that the Board could not award damages under the collective agreement for compensable injuries to which the WCA or WSIA could have applied.”
[10] In the present case, the Union argued before the Board that there was no compensable injury, because the grievor did not allege an illness or a disease. Rather she claimed to have suffered mental stress as a result of the harassment and bullying.
[11] The Board concluded that it did not have jurisdiction to award the damages sought. The Vice-Chair made reference to and quoted from the Board’s earlier decision in Monk. She noted that the particulars accepted by the Employer stated that the grievor had sought medical attention as a result of the workplace harassment and bullying, and that the grievor had been on medication since 2014 as a result. The grievor had also stated that she had “suffered significant mental, emotional and physical distress as a result of the Employer’s failure to deal with or prevent the harassment and bullying.” In the Board’s view, the grievor had a viable claim under the WSIA, as a claim was not dependent on lost wages.
[12] In reaching that conclusion, the Board accepted the Employer’s argument that claims for damages for mental stress directly arising from employment are eligible for compensation under the WSIA. However, subsections 13(4) and (5) of the WSIA, at that time, disentitled a worker’s claim for benefits for mental stress in two circumstances: first, the mental stress must be “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment” (the “acute mental stress limitation”), and second, there is no right to benefits for mental stress caused by the “employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment” (the “employment function bar”).
[13] The Board relied on two decisions of the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”): WSIAT Decision No. 2157/09 (April 29, 2014) and WSIAT Decision No. 1945/10 (January 27, 2015). Both decisions held the “acute mental stress limitation” was a violation of the equality guarantee in s. 15 of the Canadian Charter of Rights and Freedoms that was not saved by s. 1 as a reasonable limit demonstrably justified in a free and democratic society. In both decisions, WSIAT refused to apply the limitation, although it did not declare the legislative provision invalid, because an administrative tribunal does not have the authority to make a general declaration of constitutional invalidity.
[14] Given the WSIAT decisions, the Board concluded that the grievor had an injury or illness that would be or would have been compensable under the WSIA, and upheld the Employer’s preliminary objection.
The Issues
[15] Both parties agree that the standard of review in this application for judicial review is reasonableness.
[16] The Union argues that the Board’s decision was unreasonable on a number of grounds:
The Board failed to consider the employment function bar in ss. 13(4) and (5) of the WSIA, which would have barred the grievor’s claim for compensation.
The Board improperly relied on the WSIAT decisions concerning the acute mental stress limitation in ss. 13(4) and (5).
The Board failed to consider the primacy clause in s. 2(2) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”), which the Union describes as “quasi-constitutional” legislation.
The New Arguments
[17] The Employer submits that this Court should not address arguments that were not raised before the Board, but are now put forward on the application for judicial review as grounds to find the Board’s decision unreasonable. In particular, the issues of the employment function bar in the WSIA and the primacy of the OHSA are raised for the first time on this application for judicial review.
[18] A court on judicial review of a decision of an administrative tribunal has discretion to refuse to determine issues that were not raised before the tribunal (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Federation, 2011 SCC at para. 22). If the issue could have been raised before the tribunal, courts will generally find it inappropriate to deal with the issue on judicial review (at para. 23).
[19] In the present case, both of these issues could have been raised before the Board. Indeed, the employment function bar was raised before another Board Vice-Chair and discussed in OPSEU and Ontario (Ministry of Community Safety and Correctional Services) (Rosati), Re, 2018 CarswellOnt 1017 at paras. 11-12. Moreover, a determination of the impact of the employment function bar requires an assessment of the facts of the case to determine whether the bar would likely apply. The Court, on review, would benefit from the Board’s determination of this issue, given its expertise in labour relations and employment matters.
[20] With respect to the primacy clause of the OHSA and its impact on the Board’s jurisdiction to award damages, this is also an issue that could have been raised before the Board. The primacy clause, s. 2(2) provides that “[d]espite anything in any general or special Act, the provisions of this Act and the regulations prevail.” The Union’s argument that OHSA is quasi-constitutional legislation appears to be novel, and no authority is cited. Again, the Court would benefit from the Board’s consideration of questions such as whether there is a conflict between the OHSA and the WSIA and whether there is a right to damages for violations of OHSA.
[21] Accordingly, I will not consider these two issues, raised for the first time before the Court on this application for judicial review.
Was the Board’s decision reasonable?
[22] The Union submits that the Board’s decision was unreasonable because the Vice-Chair relied on two decisions of WSIAT that had held that the “acute mental stress limitation” was constitutionally invalid and declined to apply the limitation. Because the WSIAT decisions did not make a declaration of invalidity with respect to the provision, the Union argues that the limitation in ss. 13(4) and (5) is still on the statute books, and it was unreasonable for the Board to have concluded that the grievor’s injury would be compensable under the WSIA.
[23] Alternatively, the Union argues that the Board impliedly made a determination of the constitutional invalidity of the provision. That was improper, because a Notice of Constitutional Question had not been served on the Attorneys General of Canada and Ontario as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[24] I reject the argument that the Board improperly made an implicit finding of unconstitutionality. The Board did not do so. Rather, the Vice-Chair relied on the WSIAT decisions respecting the application of the acute mental stress limitation to determine if the claimed workplace injury would be compensable under the WSIA.
[25] WSIAT, in the two decisions cited to the Board, had decided that the acute mental stress limitation was a violation of the Charter and declined to give it effect. The Attorney General of Ontario had participated in the hearing leading to the first decision and did not seek judicial review of the finding of constitutional invalidity. Indeed, there has since been an amendment to the legislation to remove the acute mental stress limitation (Stronger, Fairer Ontario Act (Budget Measures), 2017, S.O. 2017, c. 34, Sched. 45).
[26] It was reasonable for the Board to conclude that the WSIAT would continue to treat the acute mental stress limitation as unconstitutional in future cases, and that the type of injury alleged by the grievor would be compensable under the WSIA. Indeed, that was the conclusion reached by two other Vice-Chairs of the Board in subsequent decisions. In AMAPCEO and Ontario (Ministry of Natural Resources and Forestry (Wilson), Re, 2017 CarswellOnt 14976, the Vice-Chair stated (at para. 27),
The reality is that the sort of illness, if proven, would have been compensable. It would not be appropriate for this Board to ignore the reality that the Tribunal charged with enforcing and applying the statute has made it clear that it would not be enforcing or applying the provisions which otherwise would have prevented the complainant from seeking benefits.
See, also, OPSEU and Ontario (Ministry of Community Safety and Correctional Services) (Foley), Re, 2018 CarswellOnt 19823 at paras. 26-27.
[27] In my view, the Board’s decision in the present case was reasonable. The Board applied the principles from Monk, and the decision is consistent with other Board decisions. The Board was required to look at the substance of the claim (Monk at para. 5), and it did so, reasonably concluding that the claim was for compensation for a workplace injury of a type that would be compensable under the WSIA.
[28] I note that this decision did not preclude the Union from seeking other relief if the Employer has acted in breach of the collective agreement. Indeed, the Board in the present case did not dismiss the grievances after upholding the Employer’s preliminary objection. Rather, the Board stated that the matter would continue as scheduled.
[29] Other Board decisions have commented on the availability of declaratory or directory relief or perhaps compensation for damage to property (see, for example, Foley at paras. 28-29). In my view, it is inappropriate for this Court to opine on the scope of the Board’s remedial authority, as the Board in this case did not address that issue.
Conclusion
[30] Accordingly, the application for judicial review is dismissed. Costs to the Employer are fixed at $5,000.00, an amount agreed upon by the parties.
Swinton J.
I agree _______________________________
D.L. Corbett J.
I agree _______________________________
Doyle J.
Released: February 21, 2019
CITATION: Ontario Public Service Employees Union v. The Crown in Right of Ontario, 2019 ONSC 1077
DIVISIONAL COURT FILE NO.: 255/17
DATE: 20190221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, D.L. Corbett and Doyle JJ.
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Applicant
– and –
THE CROWN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: February 21, 2019