Public Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396

Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396

P-2007-0852

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Steven Parrack

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE GRIEVOR

Jack Huber J. R. Huber Professional Corporation Barrister & Solicitor

FOR THE EMPLOYER

Felix Lau Counsel Ministry of Government Services

HEARING

June 9, 2008.

Decision

1This decision deals with the employer’s motion challenging the Board’s jurisdiction to hear the grievance of Steven Parrack, filed in May, 2007, which complains of his exposure to asbestos in his workplace, as well as the employer’s failure to advise him of its presence or to provide him with appropriate training and equipment to deal with the workplace asbestos and his duties as a manager in respect of it. A number of remedies are requested, including damages, training, counselling, costs, and a letter of apology. The employer takes the position that this is in essence a claim for compensation for alleged injuries to the grievor’s health, and is therefore a matter for the Worker’s Safety and Insurance Board (WSIB), rather than the Public Service Grievance Board (PSGB). The employer also reserved the right to make a timeliness objection if the PSGB found that it had jurisdiction over this grievance.

Background Facts

2For the purposes of this decision, the facts alleged by the grievor are considered true and provable, although no findings of fact have been made at this stage. The alleged facts most pertinent to this motion are set out below.

3The grievor, Mr. Parrack, who has worked at the Elgin Middlesex Detention Centre for twenty-four years, was promoted from Maintenance Mechanic to Maintenance Coordinator on March 20, 2006. Shortly thereafter, an asbestos abatement project started, which was contracted to a company which advised staff at the institution that asbestos precautions should be in place. Subsequent to this, Mr. Parrack became aware of an asbestos assessment report from May 16, 2004, nearly two years earlier, which had advised that asbestos precautions should be taken in that workplace. An inspection report from September 7, 1983 has also since come to light, which identified the presence of asbestos in the institution and advised of precautionary measures to be taken for future ceiling access.

4The grievor was quite distressed by the above information as he realized he had been exposed to asbestos on a regular basis for many years while performing his maintenance work in the institution. He says he continues to suffer stress because of the real possibility of developing asbestos related disease, which may not manifest itself for some time. The grievor was ordered to complete WSIB documents concerning his exposure and attended his family doctor for pulmonary tests, and was told he should do so on a regular basis for the indefinite future.

5Prior to learning of the problem in March 2006, the grievor had no knowledge of the presence of asbestos in the building or what precautions should have been taken. He received no training until April 20, 2006 despite his claim that the employer knew or ought to have known he was exposed to asbestos prior to that time. Further, the grievor states that the employer should have trained him to deal with staff and ministry officials who questioned him on workplace hazards. Moreover, the employer failed to notify him of the status of grievances from bargaining unit staff in regards to their own exposure or his rights as a manager in a timely fashion.

Arguments and Conclusions

6The employer’s primary argument is that the claims made by the grievor are consistent with the pre-conditions to the WSIB’s jurisdiction. It is the employer’s position that the claim of stress resulting from workplace exposure falls within the meaning of “accident” under s. 2(1) of the Workplace Safety and Insurance Act, 1997 (WSIA) and would be compensable as traumatic mental stress under the WSIB’s policies in that regard.

7Counsel for the employer submits that the PSGB has dealt with this issue correctly in Bardhan and The Crown in Right of Ontario (Ministry of Health) PSGB # P/0061/93, P/0066/93 (Willes), and that the same approach should be followed in this case. In that case, the PSGB found that insofar as a complaint related to damages or compensation for an alleged injury to health, it was a matter to be addressed by the Workers’ Compensation Board (WCB), the predecessor to the WSIB. The PSGB noted in that decision that the Workers’ Compensation Act, the predecessor legislation to the WSIA, provides workers the right to seek compensation under that Act in lieu of all other rights of action against the employer, and found that its own jurisdiction to deal with working conditions and terms of employment did not give it the right to encroach on the exclusive jurisdiction of the WCB. Employer counsel argues that the grievor is complaining about two categories of health issues, asbestos related disease, and stress, neither of which falls within the PSGB’s jurisdiction.

8Employer counsel also underlines that Bardhan has recently been cited with approval by the PSGB in Charlton and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB # P-2006-0291 (Carter). He distinguished the finding in that case, that aggravated damages were payable for mental distress where the grievors’ human rights were violated, from the claims in this case related to health related stress, submitting that Charlton involves a breach of The Human Rights Code, which has quasi-constitutional status, whereas here, essentially the grievor is claiming a breach of The Occupational Health and Safety Act (OHSA) which does not have the same status. Further, counsel argues that it makes a difference that s. 41(b) of The Human Rights Code specifically provides for damages for mental anguish, which gives a firm legislative footing to the finding in Charlton, where the OHSA does not. The employer urges the PSGB not to assume an even wider jurisdiction to entertain the possibility of Charlton style damages in a case of a health issue.

9Citing WSIB policies, employer counsel argues that both stress and asbestos related disease are compensable under the WSIA. Counsel acknowledges that stress is not as clear cut as occupational disease, but submits that it is nevertheless a health issue for which the grievor can and should be seeking compensation under the workers’ compensation regime. Counsel relies on decisions No. 1386/03 and 453/04 of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) which granted entitlement for compensation for mental stress in cases of workplace exposure to Hepatitis C and chemical exposure, respectively. In Decision No. 453/04 entitlement for a psychological disability was granted, even where the specific provisions of the policy on traumatic stress were not clearly met. In that case, a firefighter had been exposed to fumes from fires and other noxious substances over the course of his career, which had resulted in disability which included feelings of panic triggered by the odor of certain substances, such as fuels and solvents. Further, in decision No. 1386/03, a WSIAT panel found entitlement for a worker who had a negative psychological reaction to work-related Hepatitis C.

10Acknowledging that it was not certain that the grievor would be found to be entitled to compensation for his exposure to asbestos, employer counsel reserved the right to make written submissions if the WSIB were to deny the grievor’s claim.

11By contrast, counsel for the grievor maintains that the PSGB does have jurisdiction over this grievance, which is rooted in an allegation of a breach of s. 25 of The Occupational Health and Safety Act (OHSA). Counsel refers in particular to s. 25 (2)(a) and (d) of that Act as follows:

25. (1) An employer shall ensure that,

(a) the equipment, materials and protective devices as prescribed are provided;

(b) the equipment, materials and protective devices provided by the employer are maintained in good condition;

(c) the measures and procedures prescribed are carried out in the workplace;

(d) the equipment, materials and protective devices provided by the employer are used as prescribed; and

(e) a floor, roof, wall, pillar, support or other part of a workplace is capable of supporting all loads to which it may be subjected without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act.

Idem

(2) Without limiting the strict duty imposed by subsection (1), an employer shall,

(a) provide information, instruction and supervision to a worker to protect the health or safety of the worker;

(d) acquaint a worker or a person in authority over a worker with any hazard in the work and in the handling, storage, use, disposal and transport of any article, device, equipment or a biological, chemical or physical agent;

12Further counsel for the grievor argues that there is both a contractual relationship and a psychological benefit involved here. Moreover, counsel cautions against putting The Human Rights Code on a higher plane than The Occupational Health and Safety Act when both are concerned with providing a safe working environment.

13As to the employer’s argument that the WSIB policies cover claims for mental distress, counsel for the grievor observes that it is simply not known whether the WSIB will cover his situation. Moreover, there are portions of the policies relied on by the employer which put the success of a WSIB claim in doubt, particularly for mental distress. For example, the policy entitled Traumatic Mental Stress provides the following exclusion:

A worker is not entitled to benefits for traumatic mental stress that is a result of the employer’s employment decisions or actions.

This is clarified to mean decisions or actions that are part of the employment function such as terminations, demotions, transfers, discipline, changes in working hours and changes in productivity expectations. Counsel notes that this is not an exhaustive list, and that a decision by the employer not to warn might well be found to fall within the exclusion. Further, counsel makes clear that what the grievor is claiming does not flow from whether there was an accident as defined in the WSIA. Rather, it is claimed that the employer simply made a decision not to advise the grievor or other workers of the asbestos hazard. It is an allegation of a breach of the legislative regime under the OHSA which flows into his contract of employment and creates a legitimate expectation of being informed of hazards in the workplace. In support of the grievor’s position, counsel refers to Fidler vs. Sun Life Assurance Company 2006 SCC 30, [2006] SCC30, [2006] 2 S.C.R. 3 for the proposition that the PSGB has authority to deal with mental stress, without their being an independently actionable claim or bad faith.

14As to the WSIAT decisions relied on by the employer, grievor’s counsel argues they are distinguishable, and that the more analogous authority is the PSGB’s own Charlton decision, cited above.

15At the outset of my consideration of the above arguments, I note that neither party argued that the provisions of the WSIA and OHSA at issue here should not be considered part of the grievor’s individual employment contract. As in the Charlton decision, cited above, I find it entirely consistent with the trend in recent judicial decisions, including the decision of the Supreme Court of Canada in District of Parry Sound Social Services Administration Board v. OPSEU, Local 324 , 2003 SCC 42, [2003] 2 S.C.R. 157, [2003] SCJ 42, to find that the relevant provisions are at least implied terms in the grievor’s individual contract of employment.

16The basic question to be answered is whether the jurisdiction of the PSGB is ousted by the WSIA. The separate and secondary issue concerns whether damages are an available remedy, if jurisdiction is found. As noted above, the PSGB dealt with a somewhat similar issue in Bardhan. In that case, the Board deferred to the Workers’ Compensation Board, as it then was, concerning the health issues involved and damages claimed in that respect, but took jurisdiction over other allegations of impropriety made by the grievor against the employer dealing with a disputed change of assignment or demotion and harassment.

17The most recent relevant authority from the PSGB is the Charlton decision, cited above. The PSGB ‘s decision, based on an extensive agreement of facts, was limited to what remedies should flow from the breach of the grievor’s contractual right to a workplace free of racial harassment. Acknowledging that the grievor in that case was in receipt of WSIB benefits for mental stress, the PSGB noted that although the worker’s compensation scheme has exclusive jurisdiction over the aspect of the grievor’s injury dealing with her health, it did not preclude the PSGB from dealing with the injury to her dignitary interest flowing from serious racial harassment. The PSGB adopted the approach set out by the Supreme Court of Canada’s decision in Fidler, cited above, which held that damages for mental distress for breach of contract may be recovered where they are established on the evidence and shown to have been within the reasonable contemplation of the parties at the time the contract was made. Specifically the Court found that, where a contractual term creates an expectation of a “psychological benefit”, its breach may result in damages for mental distress. Applied to the agreed facts in Charlton, this approach resulted in an award of damages to make the grievor whole, beyond the partial loss of income benefits flowing from the WSIA, including damages for mental distress as the result of racial harassment.

18A case somewhat similar to the current claim, albeit concerning a unionized employee, is Ontario Power Generation and society of Energy Professionals (Robinson Grievance) [2007] OLAA No. 685 (Burkett). In that case, the grievance alleged that the employer had failed to warn of the dangers of flu shots that it had promoted, and was responsible for damages to the grievor because of negative health effects flowing from the shots. The employer challenged the arbitrator’s jurisdiction to hear the matter on a similar basis to that in the motion before me. The arbitrator found that, notwithstanding a provision of the collective agreement which purported to exclude health and safety grievances, he had jurisdiction because of the fact that the The Occupational Health and Safety Act was an implied term of the collective agreement and the parties were not capable of contracting out of it. Nonetheless, in taking jurisdiction on that basis, he found that it would be unlikely that he would award damages, which were not part of the OHSA’s statutory scheme. On the issue of whether any jurisdiction to award damages was ousted by the WSIA, Arbitrator Burkett decided to await the outcome of a grievance which had been filed with the Ontario Crown Employees Grievance Settlement Board (GSB), OPSEU (Lariviere) and Ministry of Community Safety and Correctional Services (Dissanayake), GSB #2002-2124 which was thought to be proceeding to the Court of Appeal. In the first decision in that case, dated October 6, 2005, the employer's objection to the jurisdiction of the GSB was dismissed, on the basis of a difference in wording between the WSIA and its predecessor legislation (an argument not advanced before me). In a second decision dated November 29, 2006 the grievances were dismissed on their merits. An application for judicial review of the first decision regarding jurisdiction was dismissed by the Divisional Court in a decision dated June 22, 2007 (their case file number 238/06) on the grounds that it was moot in light of the later decision dismissing the grievances on their merits. Leave to appeal the decision of the Divisional Court was denied. (Court of Appeal file number M35315, dated 16 October 2007) In the result, no guidance is available from the Courts in the Lariviere case.

19The following provisions of the WSIA are pertinent to the question of whether this grievance is properly before the PSGB:

From the definition section:

(1)In this Act,

“accident” 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;

“impairment” means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss;

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.

(4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress.

Same

(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. 1997, c. 16, Sched. A, s. 13.

15. (1) This section applies if a worker suffers from and is impaired by an occupational disease that occurs due to the nature of one or more employments in which the worker was engaged.

Entitlement to benefits

(2) The worker is entitled to benefits under the insurance plan as if the disease were a personal injury by accident and as if the impairment were the happening of the accident.

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. 1997, c. 16, Sched. A, s. 26 (1).

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 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. 1997, c. 16, Sched. A, s. 26 (2); 1999, c. 6, s. 67 (6); 2005, c. 5, s. 73 (6).

Payments for loss of earnings

43. (1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this section beginning when the loss of earnings begins. The payments continue until the earliest of,

(a) the day on which the worker’s loss of earnings ceases;

(b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury;

(c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;

(d) the day on which the worker is no longer impaired as a result of the injury. 1997, c. 16, Sched. A, s. 43 (1).

Amount

(2) Subject to subsections (3) and (4), the amount of the payments is 85 per cent of the difference between,

(a) the worker’s net average earnings before the injury; and

(b) the net average earnings that he or she earns or is able to earn in suitable and available employment or business after the injury.

However, the minimum amount of the payments for full loss of earnings is the lesser of $15,312.51 or the worker’s net average earnings before the injury. 1997, c. 16, Sched. A, s. 43 (2); 2000, c. 26, Sched. I, s. 1 (5); 2007, c. 7, Sched. 41, s. 2 (1).

118. (1) The Board has exclusive jurisdiction to examine, hear and decide all matters and questions arising under this Act, except where this Act provides otherwise. 1997, c. 16, Sched. A, s. 118 (1).

Same

(2) Without limiting the generality of subsection (1), the Board has exclusive jurisdiction to determine the following matters:

2. Whether personal injury or death has been caused by an accident.

3. Whether an accident arose out of and in the course of an employment by a Schedule 1 or Schedule 2 employer.

4. Whether a person is co-operating in reaching his or her maximum medical recovery, in returning to work or in the preparation and implementation of a labour market re-entry plan.

5. Whether an employer has fulfilled his, her or its obligations under the insurance plan to return a worker to work or re-employ the worker.

6. Whether loss of earnings has resulted from an injury.

7. Whether permanent impairment has resulted from an injury, and the degree of the impairment.

8. The amount of a person’s average earnings and net average earnings.

Finality of decision

(3) An action or decision of the Board under this Act is final and is not open to question or review in a court. 1997, c. 16, Sched. A, s. 118 (3).

Same

(4) No proceeding by or before the Board shall be restrained by injunction, prohibition or other process or procedure in a court or be removed by application for judicial review or otherwise into a court. 1997, c. 16, Sched. A, s. 118 (4).

20As can be seen from s. 26(2) above, entitlement to benefits under the WSIA is in lieu of any action against the employer in relation to an “accident” happening to a worker or an occupational disease contracted while in the employment of the employer. Benefits are payable, by virtue of section 15(2), where an injury has resulted from an accident arising in the course of employment. By virtue of s. 118(1) the WSIB has exclusive jurisdiction to determine whether there has been such an accident or injury and related questions. So, if the grievance were limited to a claim for any of those things, it would be very straightforward to agree with the employer’s position and defer to the jurisdiction of the WSIB, at least until a claim was determined.

21However, the grievance, as framed, is a mix, having a dual focus, on failed prevention and lack of training on the one hand, and concern about potential asbestos related disease on the other. There are certain statements in the grievance which are quite clearly material for the workers’ compensation regime. For example, the grievance states that the grievor “has suffered or will suffer asbestos related disease”, which fits very easily into the realm of industrial disease provided for in the WSIA. Similarly, there is the statement that the grievor has suffered and is suffering from stress due to exposure to asbestos and the real possibility of incurring asbestos related disease. Nonetheless, the grievance also aims at the employer’s alleged failure to advise of, or provide training concerning, a workplace hazard, which is recognizable principally as an allegation of a breach of the OHSA, rather than a claim of an accident or injury under the WSIA. The damage claim is made in the alternative, firstly simply as “damages”, without specifying for what, which could cover both aspects of the grievance, and in the alternative, a request that the employer establish a fund to be paid if the grievor develops asbestos related disease or illness. In argument, counsel for the grievor framed the damage claim as analogous to the Charlton damages, which were granted in addition to workers’ compensation benefits, as mental distress damages.

22The features of the claim which cluster around the claimed breaches of the OHSA requirements to warn and train do not appear to be covered by the WSIA, and are severable from them. I find these aspects of the grievance to be within the jurisdiction of the PSGB. Although it was not disputed, I note that s. 2(1) of the OHSA provides that it binds the Crown and applies to an employee in the service of the Crown. Those aspects of the grievance related to the health consequences of exposure to asbestos, however, are matters for the WSIB, at least in the first instance. On these matters, it is appropriate to defer to the jurisdiction of the WSIB, but to leave open the question of what, if anything, would be left of this portion of the grievance if the WSIB were to turn down a claim or find that the regime did not cover the grievor’s situation.

23There remains the question of the availability of damages as a remedy, including damages for mental distress, if a breach were found, for the portion of the grievance which I find to be within the PSGB’s jurisdiction. On the material currently before me on this preliminary motion, it is not plain and obvious that none would be available, and thus it is premature to make a finding ruling out damages. There is a range of results and thought on the appropriateness of damages in grievances claiming damages for breach of the OHSA. See for instance, Ontario Power Generation, discussed above, Toronto Transit Commission and A.T.U. (Stina) 2004 CanLII 55086 (ON LA), 132 L.A.C. (4th) 225 (Shime), where substantial damages were granted for harassment as a breach of OHSA guarantees and North Bay General Hospital and O.P.S.E.U. (Anger), (2006) 154 L.A.C. (4th ) 425 (Randall) where modest damages were awarded for breach of confidentiality provisions of the OHSA, as well as the cases referred to in those decisions.

24In order to be successful in gaining any damages as a remedy for any breach of a term of the grievor’s employment contract, the grievor will have to prove that they arose from the breach, as set out in Hadley v. Baxendale (1854) 9 Ex. 341, 156 E. R. 145 at page 151. For mental distress damages, the grievor will have to establish the elements set out at paragraph 47 of the Supreme Court of Canada’s decision in Fidler, cited above, i.e. (1) that an object of the term of his employment contract, e.g. relating to the OHSA, was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and (2) that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation. If those tests can be met, the appropriate quantum of any damages would have to be determined. As noted above, the claim for damages made in the grievance before me does not distinguish between the effects of the two different aspects of the facts alleged in this case. And the distress experienced by the grievor is not likely neatly compartmentalized along the lines drawn by the legislators between the two statutory schemes of the OHSA and the WSIA. Nonetheless, for the purposes of the grievance, if any breach were found, the source of any damages would have to be separated out in a manner which respects the divided jurisdiction and avoids double recovery.

25In sum then, those aspects of the claim which flow from personal injury by accident arising out of the course of employment, including exposure to asbestos and any resulting medical consequences are matters for the WSIB, at least in the first instance. However, the other aspects of the grievance fall within the PSGB’s jurisdiction, and may be pursued independently of those related to the WSIB. It is appropriate to remain seized to hear submissions on whether the PSGB has jurisdiction over any issue which the parties can not resolve themselves which may remain if the WSIB turns down a claim or otherwise declines to deal with the issues raised by the grievor.

26In light of this preliminary decision, the parties are directed to attempt to resolve the remaining issues, and report to the Board if the matter is settled, or if further hearing dates are required.