Court File and Parties

CITATION: Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2019 ONSC 2952

DIVISIONAL COURT FILE NO.: 325/18

DATE: 20190513

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ONTARIO PUBLIC SERVICE EMPLOYEES UNION, the Applicant

AND:

THE CROWN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES, Respondent

BEFORE: RSJ ELLIES, SACHS, and THORBURN JJ.

COUNSEL: Richard A. Blair and Christopher Bryden, for the Applicant

Paul Meier, for the Respondent

HEARD at Toronto: May 13, 2019

Endorsement

SACHS J., (Orally)

[1] In this case the Applicant union filed a grievance alleging that the Respondent employer had violated the Grievor’s rights pursuant to a collective agreement that guaranteed a harassment free work environment. In a decision dated December 8, 2017, Arbitrator Carrier of the Greivance Settlement Board (the “GSB”) found that the Grievor’s rights had been violated, but found that he could not award the Grievor damages for the mental stress he had suffered because he did not have jurisdiction to provide financial relief for this stress. Those damages were within the jurisdiction of the Workplace Safety and Insurance Act Board (“WSIAB”). Section 26(2) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16 (the “WSIA”) states that the GSB has no jurisdiction to award damages to an employee for an injury that would be caused by covered by worker’s compensation benefits.

[2] This is an application to judicially review the GSB’s decision. Originally the application put forward two grounds, but in oral argument the Applicant advised that it was abandoning one of those grounds. Thus, the only issue we were asked to address is whether the GSB’s application of the WSIA “employment function” mental stress exclusion was reasonable.

[3] Key to the Applicant’s submission on this point is the wording of s. 13(5) of the WSIA. That section reads as follows:

A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and expected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

[4] Thus, under s. 13(5) a worker is entitled to benefits for mental stress as long as the stress was not “caused by his or her employer’s decisions or actions relating to the worker’s employment.” This is what is known as the “employment function” mental stress exclusion.

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

[39]…..The Grievor 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.

[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.

[6] According 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 Grievor’s claims for damages.

[7] We agree with the Applicant.

[8] The Respondent argues that the issue of the employment function mental stress exclusion was not raised before the GSB and, therefore, it should not be dealt with for the first time on judicial review. In this case, it does not matter whether the parties raised the issue with the GSB, since the GSB chose to deal with it in its decision.

[9] The Respondent also submits that a reasonableness analysis requires that we put the impugned comments in context and, if this is done, it is clear that the GSB did not make a finding that the employment function mental stress exclusion applied. In fact, if anything, the GSB did the opposite. Unfortunately, given the fact that the decision is worded so as to track the language of the statute regarding the exclusion, we cannot find that this is the case. Furthermore, we have a concern that if the Grievor were to apply for worker’s compensation benefits he would be met with an argument that the GSB made a clear finding that the exclusion applied.

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

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

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

RSJ ELLIES

[13] I 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.”

SACHS J.

I agree _______________________________

RSJ ELLIES

I agree _______________________________

THORBURN J.

Date of Oral Endorsement: May 13, 2019

Date of Release: May 14, 2019