Court File and Parties

Court File No.: 13-58982 Date: 2018/08/03 Superior Court of Justice - Ontario

Re: Laurie Johnson Wisotzki, personally, Marcus Wisotzki, Andrew Penley, Shara Stirrett, Jodi Fawcett, Kijana Kenneth Ben Ladengo, an infant by his Litigation Guardian, Laurie Johnson Wisotzki, Julius Ronald Okalo Ladengo, an infant by his Litigation Guardian, Laurie Johnson Wisotzki, London-James Nelson Stirrett, an infant by his Litigation Guardian, Laurie Johnson Wisotzki, Quintin Ronald Thomas Fawcett, an infant by his Litigation Guardian, Laurie Johnson Wisotzki, and Stella Maressa Mae Fawcett, an infant by her Litigation Guardian, Laurie Johnson Wisotzki, Plaintiffs

And: PCL Constructors Inc. and PCL Constructors Canada Inc., Defendants

Before: Justice R. Ryan Bell

Counsel: James Cameron and Morgan Rowe, for the Plaintiffs Dan Palayew, for the Defendants

Heard: May 10, 2018

Endorsement

Overview

[1] The plaintiffs Laurie Johnson Wisotzki and her husband, Marcus Wisotzki, were employed by the defendant PCL Constructors Canada Inc. In October 2012, Ms. Johnson Wisotzki left the workplace on the basis of illness, and did not return. In September 2013, she applied to the Workplace Safety and Insurance Board (“WSIB”) for benefits arising from alleged abuse and harassment by her supervisor. Ms. Johnson Wisotzki subsequently withdrew her claim for WSIB benefits.

[2] In October 2013, Ms. Johnson Wisotzki and her family (in addition to her spouse, the remaining plaintiffs are her children and grandchildren), commenced an action against the defendants. In the statement of claim, Ms. Johnson Wisotzki alleges that she was subjected to abuse and harassment by her supervisor throughout her employment with the defendants. The plaintiffs advance claims in tort and contract, and pursuant to the Human Rights Code, R.S.O. 1990, c. H.19 and the Family Law Act, R.S.O. 1990, c. F.3. The statement of defence and the reply were served in December 2013.

[3] In July 2014, the defendants initiated an application to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) to determine whether certain causes of action in the statement of claim are taken away pursuant to s. 31(1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16 (the “Act”). The defendants’ “right to sue” application was heard in May 2016.

[4] On December 20, 2016, the WSIAT released its decision. The WSIAT determined that all of the causes of action in the original pleading with respect to Ms. Johnson Wisotzki are taken away pursuant to section 31 of the Act with the exception of the causes of action based on surveillance placed on her in October 2013, alleged breaches of the Human Rights Code, pain and suffering arising from discriminatory treatment, and the claim for punitive damages.

[5] The plaintiffs seek to amend the statement of claim in a manner they maintain is responsive to the WSIAT decision. The defendants oppose the proposed amendments. They say that the WSIAT has the exclusive jurisdiction to determine whether a worker’s right to commence an action is taken away by operation of the Act and that the proposed amendments are statute-barred as a result of the WSIAT decision.

[6] In addition to opposing the proposed amendments, the defendants bring their own motion which seeks to strike out: (i) the paragraphs of the statement of claim that the defendants maintain are statute-barred as a result of the WSIAT decision; (ii) the remaining allegations in the statement of claim and in the reply in respect of the October 2013 surveillance; and (iii) the allegations of breaches of the Human Rights Code.

[7] I have determined that the plaintiffs’ proposed amendments to the statement of claim are statute-barred as a result of the WSIAT decision. Accordingly, I dismiss the plaintiffs’ motion to amend. It follows that the paragraphs in the original statement of claim that are inconsistent with the WSIAT decision must be struck out. I have also determined that the allegations in the statement of claim relating to the October 2013 surveillance must be struck out as the plaintiffs have failed to plead the necessary facts to establish the elements of the tort of intentional infliction of mental suffering. Finally, the alleged breaches of the Human Rights Code are struck out. In my view, the allegation that the defendants failed to address a “poisoned work environment” is barred by the WSIAT decision. The alleged refusal to pay Ms. Johnson Wisotzki at the same rate as her male co-workers performing the same work cannot be maintained as a standalone claim.

The Legal Framework of the Act

[8] When a worker is entitled to insurance benefits under the Act for a workplace accident, s. 26(2) of the Workplace Safety and Insurance Act, 1997 provides that the worker’s entitlement to benefits,

… 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.

[9] Section 28(1) of the Workplace Safety and Insurance Act, 1997 provides that a worker employed by a Schedule 1 employer is not entitled to commence an action against the employer or an employee of the employer in respect of the worker’s injury or disease. The WSIAT found that the defendants are Schedule 1 employers and that Ms. Johnson Wisotzki was a worker in the course of her employment when she was subjected to the harm alleged.

[10] If a worker’s right of action is taken away under s. 28, the worker’s spouse, child, dependant or survivors are not entitled to commence an action under s. 61 of the Family Law Act (s. 27(2) of the Workplace Safety and Insurance Act, 1997).

[11] Section 31(1) of the Workplace Safety and Insurance Act, 1997 provides:

A party to an action or an insurer from whom statutory accident benefits are claimed under section 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;

(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.

[12] The WSIAT has exclusive jurisdiction to determine whether the right to commence an action is taken away and the WSIAT’s decision is “final and not open to question or review in a court” (ss. 31(2) and (3) of the Workplace Safety and Insurance Act, 1997).

[13] A very high level of deference is to be afforded WSIAT decisions (Mills v. Ontario (Workplace Safety & Insurance Appeals Tribunal), 2008 ONCA 436, [2008] O.J. No. 2150 (Ont. C.A.), at paras. 14, 24 and 31). On an application for judicial review of a WSIAT decision determining whether the right to sue is removed by the Act, the Divisional Court will only interfere where there is no evidence in support of a finding of fact or if there are no lines of reasoning that would support the decision (Blatz v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2016 ONSC 7259 (Div. Ct.), at para. 40).

[14] The plaintiffs have not filed an application for judicial review of the WSIAT decision. The WSIAT decision is final and binding on the parties.

The WSIAT Decision

[15] The central issue to be determined by the WSIAT was whether Ms. Johnson Wisotzki was entitled to claim benefits under the Act in relation to the injuries alleged in the statement of claim. The WSIAT considered, and rejected, each of the arguments advanced by the plaintiffs that their right to sue the defendants is not taken away by the Act. In particular, the plaintiffs argued that the harm caused to Ms. Johnson Wisotzki by the defendants’ actions occurred outside of the workplace and after she had ceased her employment with the defendants. The plaintiffs relied on the following allegations:

• Ms. Johnson Wisotzki’s spouse was dismissed from his employment with the defendants;
• her complaints were not properly investigated;
• the defendants failed to properly discipline Ms. Johnson Wisotzki’s supervisor;
• the defendants inappropriately communicated her complaints to her supervisor and other employees, despite her fears for her safety;
• the defendants failed to accommodate her to allow her to return to work; and
• the defendants sent a private investigator to her home and put her under surveillance.

[16] With the exception of the surveillance that occurred in October 2013, the WSIAT, at paras. 65 and 68, determined that:

…these events which occurred after October 2012 are closely related to the events that occurred prior to that date, and which I find occurred in the course of Ms. [Johnson Wisotzki’s] employment with the [defendants]. I find that these latter events arose out of Ms. [Johnson Wisotzki’s] employment and, at least arguably, could be the basis of entitlement to compensation under the Act…

Accordingly, I find that the [plaintiffs] are not entitled to maintain an action in relation to the events which occurred after October 2012, on the basis that they occurred beyond the course of Ms. [Johnson Wisotzki’s] employment, except that the [plaintiffs] are entitled to maintain an action as it relates to surveillance alleged to have been imposed upon Ms. [Johnson Wisotzki] by the [defendants] in or about October 2013.

[17] At the WSIAT, the plaintiffs also argued that Ms. Johnson Wisotzki’s claims for intentional infliction of mental suffering and breach of contract fall outside the protection given to employers under the Act. In rejecting this argument, the WSIAT, at paras. 79 and 81, concluded that:

…in their Statement of Claim, the [plaintiffs] have advanced an action for breach contract [sic], alleging that the [defendants] have breached a term of the employment contract between Ms. [Johnson Wisotzki] and the [defendants], namely, the [defendants’] obligation to maintain a safe workplace for Ms. [Johnson Wisotzki]. I find that the harm caused to Ms. [Johnson Wisotzki] associated with the allegation of this breach is essentially the same harm that would be claimed by Ms. [Johnson Wisotzki] in a claim for personal injury.

I find that, in this case, the harm to Ms. [Johnson Wisotzki] which would form the basis for an action for breach of the [defendants’] obligation to provide her with a safe work environment, is essentially the same harm which forms the basis of her claim for personal injury. Accordingly, the worker’s action cannot be maintained on the basis that it is a claim for breach of contract not covered by the Act.

[18] The WSIAT concluded as follows:

(i) “…the subject action by the [plaintiffs] is taken away by operation of the Act, save and except for the elements of the action which the parties have agreed will not be affected by this application, and save and except for the action as it relates to surveillance alleged to have been imposed upon Ms. [Johnson Wisotzki] by the [defendants] in or about October 2013” (WSIAT decision, at para. 82).

(ii) The action is taken away against the defendants except for:

a. the elements of the action which claim damages for Mr. Wisotzki, except for his claim made under the Family Law Act for the loss of guidance, care and companionship;

b. the elements of the action for damages for Ms. Johnson Wisotzki arising from breach of human rights and pain and suffering arising from discriminatory treatment;

c. the plaintiffs are entitled to maintain their action as it relates to surveillance alleged to have been imposed upon Ms. Johnson Wisotzki by the defendants in or about October 2013 (WSIAT decision, para. 83).

(iii) Apart from any rights that might accrue from the portion of Ms. Johnson Wisotzki's action which is maintained, the rights of action of her spouse, children and dependants under the Family Law Act are taken away by the Act. The rights of action of her grandchildren under the Family Law Act, who are not dependants, are not taken away by the Act (WSIAT decision, para. 85).

(iv) The claim by Ms. Johnson Wisotzki for punitive damages is taken away by the Act, except for such damages that may arise in relation to breach of human rights and discriminatory treatment, or arising from the surveillance issue (WSIAT decision, para. 86).

The WSIAT Decision Bars the Proposed Amendments and Paragraphs of the Original Claim

[19] In this section, I will analyse most of the proposed amendments and impugned paragraphs of the original claim in light of the WSIAT decision. I will analyse the remaining surveillance allegations and the alleged breaches of the Human Rights Code in subsequent sections.

[20] The plaintiffs submit that the draft amended pleading complies with the WSIAT’s decision as the proposed amendments:

(i) remove the causes of action that the WSIAT found to be statute-barred and remove material facts pleaded which relate only to statute-barred claims;

(ii) clarify that Ms. Johnson Wisotzki’s remaining claim for intentional infliction of mental suffering relates only to the surveillance issues;

(iii) reduce the claim for punitive damages to reflect the narrower claims being pursued by Ms. Johnson Wisotzki; and

(iv) reduce the Family Law Act claims for Mr. Wisotzki and for the children and grandchildren to reflect the narrower claims being pursued by Ms. Johnson Wisotzki.

[21] I disagree. I recognize that some paragraphs from the original statement of claim do not appear in the proposed amended pleading; however, numerous paragraphs remain that, in my view, plead facts in support of claims that the WSIAT has determined have been taken away by operation of the Act. I do not agree with the plaintiffs’ assertion that the paragraphs can remain in the pleading on the basis that they provide context for and relate to claims that are not statute-barred. To accept the plaintiffs’ submission would negate the effect of the WSIAT decision and s. 31(1) of the Workplace Safety and Insurance Act, 1997.

[22] The general rule is that amendments to pleadings are to be presumptively approved, but that rule is subject to a number of exceptions. The exceptions relevant to this case are: (i) where the proposed amendment, if originally pleaded, would have been struck; (ii) where the proposed amendment is untenable in law; and (iii) where the proposed amendment advances a claim that is statute-barred (4197658 Canada Inc. v. The Atlas Corporation, 2017 ONSC 4711, at para. 17).

[23] Because many of the proposed amendments are similar to, or the same as, paragraphs in the original pleading and because my analysis of the proposed amendments applies equally to the defendant’s motion to strike substantial portions of the original claim, I will refer to the proposed amendments by category, using the paragraph numbers of the original statement of claim and the reply.

(i) “Overview of the Plaintiffs’ Claim” Paragraphs

[24] The first category of proposed amendments that I address are those that appear under the heading “Overview of the Plaintiffs’ Claim”. The proposed amendments appear as paragraphs 10 and 11, part of paragraph 13, portions of paragraphs 14 and 15, and part of paragraph 16 of the statement of claim. The defendants submit that all of the paragraphs comprising the overview, with the exception of paragraphs 14 and 15, should be struck out.

[25] With the exception of paragraphs 14 and 15, the paragraphs in the overview allege that Ms. Johnson Wisotzki was subjected to abuse and harassment by her supervisor. The paragraphs refer, by way of overview, to events that occurred during the course of her employment and the defendants’ alleged failure to address the workplace situation.

[26] The plaintiffs’ position with respect to these paragraphs and, as I will come to, many others, is that the paragraphs provide context to support Ms. Johnson Wisotzki’s claim with respect to the October 2013 surveillance. The plaintiffs say that the paragraphs explain why Ms. Johnson Wisotzki’s mental state was so fragile at the time of the surveillance in October 2013 and why the defendants knew that to be the case.

[27] It is important to note the reason for the WSIAT’s determination that the plaintiffs are entitled to maintain the action as it relates to the October 2013 surveillance:

In relation to the surveillance that occurred in October 2013, I find that the evidence does not establish that this action arose from Ms. [Johnson Wisotzki’s] employment. This surveillance incident occurred well after Ms. [Johnson Wisotzki] ceased her employment with the [defendants], and it is not clear from the evidence why the surveillance was imposed or whether it was related to Ms. [Johnson Wisotzki’s] employment…(WSIAT decision, at para. 67).

[28] The October 2013 surveillance occurred after Ms. Johnson Wisotzki applied for WSIB benefits and after she had commenced litigation. The WSIAT determined that the claim based on the October 2013 surveillance was not taken away by the Act because the evidence did not establish that the claim arose from her employment. In other words, because there was no demonstrated link with her employment, the surveillance claim could continue.

[29] I do not accept the plaintiffs’ argument that these paragraphs provide context for Ms. Wisotzki’s claim arising from the October 2013 surveillance. The impugned paragraphs refer, in summary fashion, to events that occurred before October 2012, in the course of her employment. They describe events in relation to statute-barred causes of action. In my view, the plaintiffs’ attempts to now link the surveillance claim to pre-October 2012 events, in order to retain these paragraphs in the proposed amended pleading, amounts to a collateral attack on the WSIAT’s reasoning and decision. The WSIAT decision is final and binding on the parties.

[30] The proposed amendments under this heading are statute-barred by the WSIAT decision and are denied. It follows that the paragraphs in the original pleading are also statute-barred. Paragraphs 10, 11, 12, 13 and 16 of the statement of claim are therefore struck out.

(ii) Paragraph 20 of the Original Claim

[31] Paragraph 20 of the statement of claim refers to an event that occurred in May 2011, shortly after Ms. Johnson Wisotzki commenced working for the defendants. The plaintiffs seek to retain this paragraph in the proposed amended pleading to explain why Ms. Johnson Wisotzki was afraid of her supervisor. They seek to draw a link between an event which occurred during the course of her employment with the claim for intentional infliction of mental suffering arising from the October 2013 surveillance. To permit the plaintiffs to do so would be to allow them to avoid the effect of the WSIAT decision.

[32] Paragraph 20 of the statement of claim is statute-barred and is struck out on this basis. The associated amendment is denied.

(iii) “Harassment and Intimidation by Mr. Clark” Paragraphs

[33] The next category of proposed amendments appear under the heading “Harassment and Intimidation by Mr. Clark”. The impugned paragraphs are paragraphs 22(a), (b), (c), (e), (f), (g), (j), (k), (l), (m), (n), (p), (s), (t), (u), 23, 25 and 26 of the statement of claim, most of which appear in the proposed amended pleading. Each of these paragraphs and subparagraphs plead events and interactions between Ms. Johnson Wisotzki and her supervisor that occurred in the course of her employment.

[34] These paragraphs are contrary to the WSIAT’s decision. They plead events in support of claims that are statute-barred. The plaintiffs are attempting to recast the same paragraphs, arguing that the pleaded facts are necessary to explain Ms. Johnson Wisotzki’s mental state and why the defendants were aware of her mental state at the time of the surveillance. I reject the plaintiffs’ argument. If the plaintiffs were dissatisfied with the WSIAT’s decision, their remedy was to apply to have the decision judicially reviewed. The plaintiffs did not do so. They are not permitted, through the proposed amendments, to circumvent the WSIAT decision.

[35] These paragraphs are struck out from the statement of claim. The proposed amendments are denied.

(iv) “Attempts to Address Concerns with PCL, May 2011 to October 2012” Paragraphs

[36] The next category of proposed amendments appear under the heading “Attempts to Address Concerns with PCL, May 2011 to October 2012”. They are paragraph 27, most of paragraph 28, and paragraph 29 of the original pleading. As the heading to this section of the statement of claim indicates, these paragraphs refer to events that occurred during the course of Ms. Johnson Wisotzki’s employment. Causes of action based on these events are statute-barred as a result of the WSIAT decision. The proposed amendments are denied and these paragraphs in the statement of claim are struck out.

(v) “Medical Leave” – Paragraph 30 of the Original Claim

[37] This paragraph pleads facts in relation to Ms. Johnson Wisotzki’s medical leave. These facts support a statute-barred cause of action. This paragraph must be struck out from the statement of claim. It follows that the associated proposed amendment is denied.

“Failure to Act by PCL after Departure from Workplace” Paragraphs

[38] The next category of proposed amendments appear at paragraphs 31 to 42, inclusive, of the statement of claim. In these paragraphs, the plaintiffs describe the defendants’ alleged failure to respond to Ms. Johnson Wisotzki’s concerns after October 2012.

[39] These paragraphs describe events which the WSIAT determined are closely related to the events that occurred prior to that date, and which the WSIAT found occurred in the course of Ms. Johnson Wisotzki’s employment with the defendants. The WSIAT found that these post-October 2012 events arose out of her employment and, at least arguably, could be the basis of entitlement to compensation under the Act. The WSIAT determined that the plaintiffs are not entitled to maintain an action in relation to these post-October 2012 events.

[40] These paragraphs are statute-barred as a result of the WSIAT decision. They must be struck out from the statement of claim. The associated proposed amendments are denied.

(vi) “Effects on Laurie’s Health” Paragraphs

[41] These are paragraphs 43, 44 and 45 of the statement of claim. They are largely reproduced in the proposed amendments, under the same heading. As the opening words to paragraph 43 of the statement of claim confirm, these paragraphs set out the alleged effects on Ms. Johnson Wisotzki’s health as a result of her supervisor’s abusive treatment and the defendants’ alleged actions.

[42] In my view, these paragraphs fall squarely within the WSIAT’s decision as they describe alleged harm caused to Ms. Johnson Wisotzki that is essentially the same harm that would be claimed by her in a claim for personal injury which is compensable under the Act. I have concluded that these paragraphs are statute-barred and must be struck out from the statement of claim. The associated proposed amendments are denied.

(vii) Intentional Infliction of Mental Suffering – Paragraph 50 of the Original Claim

[43] Paragraph 50 of the statement of claim does not appear to have been retained in the proposed amended pleading. This paragraph is statute-barred as a result of the WSIAT decision as it refers, in general terms, to the defendants’ alleged conduct and motivations following Ms. Johnson Wisotzki’s departure from the workplace. Paragraph 50 of the statement of claim is struck out.

(viii) “Breach of Contract and Loss of Career Opportunities” – Paragraphs 52 and 53

[44] These paragraphs do not appear in the proposed amended pleading, apparently in recognition that these claims are statute-barred as a result of the WSIAT’s decision. They are struck out from the statement of claim. It follows that paragraphs 1(a)(ii) (the claim for damages for breach of contract) and 1(a)(iii) (the claim for damages for loss of income) of the statement of claim must also be struck out.

The October 2013 Surveillance Allegations

[45] The remaining surveillance allegations appear at paragraphs 1(a)(i), (a)(v), (b)(iv), and (c) of the statement of claim and at paragraphs 14 to 17, inclusive, of the reply. The proposed amended statement of claim incorporates, with some modifications, the relevant reply paragraphs. The WSIAT determined that Ms. Johnson Wisotzki’s claims related to the October 2013 surveillance are not taken away by the Act. The impugned paragraphs are in support of Ms. Johnson Wisotzki’s claim for intentional infliction of mental suffering.

[46] The defendants submit that these paragraphs should be struck out on the basis that they disclose no reasonable cause of action. The defendants say that the plaintiffs have failed to plead the necessary facts to establish the tort of intentional infliction of mental suffering and that, in any event, the facts that are pleaded in support of this claim cannot appear in the reply.

[47] The three elements of the tort of intentional infliction of mental suffering are: (i) the defendant’s conduct must be flagrant and outrageous; (ii) the defendant’s conduct must be calculated to harm the plaintiff; and (iii) the defendant’s conduct must result in a visible and provable illness (Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, at para. 41).

[48] The defendants submit that a pleading of what they characterize as “routine surveillance”, following the commencement of the litigation and Ms. Johnson Wisotzki’s application for WSIB benefits, cannot be considered flagrant and outrageous conduct. The plaintiffs argue that given the nature of and the context in which the surveillance was conducted, the defendants’ conduct rose to the level required to establish this element of the tort.

[49] The plaintiffs rely on the Ontario Court of Appeal’s decision in Prinzo v. Baycrest Centre for Geriatric Care, (2002), 60 O.R. (3d) 474, where the Court concluded at para. 53 that the conduct in support of the claim for aggravated damages for intentional infliction of mental suffering was adequately pleaded and submissions concerning the conduct were made at trial. The Court clarified at para. 45 that the requirement that the conduct be calculated to produce harm is established “where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow.”

[50] The facts in Prinzo are distinguishable from those pleaded in the statement of claim at issue before me. The trial judge in Prinzo found that the acts of harassment by the employees of the defendant were so extreme and insensitive that they constituted a reckless and wanton disregard for the plaintiff’s health and that the defendant’s employees were well aware of the physical and emotional health of the plaintiff and realized the detrimental effect their harassment would have on her, yet they persisted in the harassment with “almost sadistic resolve.” In Prinzo, there was evidence of a visible and provable illness caused by the defendants’ actions.

[51] The necessary facts to establish the requisite elements of the tort of intentional infliction of mental suffering have not been pleaded. In my view, the October 2013 surveillance, after the commencement of the litigation, does not amount to flagrant and outrageous conduct by the defendants. Leaving aside the surveillance activity – and the WSIAT determined Ms. Johnson Wisotzki’s claim based on the alleged surveillance could continue precisely because there was no link with her employment – the WSIAT was unable to conclude that the defendants had acted maliciously toward Ms. Johnson Wisotzki or that they intended to cause her harm (WSIAT decision, at para. 60).

[52] Finally, the pleadings do not establish how the defendants’ alleged conduct – that is, the surveillance itself – caused the plaintiff a visible and provable illness. The proposed amended claim states “[t]his action triggered a substantial decline in Laurie’s health, particularly [sic], which resulted in hospitalization approximately one month later. In my view, the plaintiffs have not pleaded facts necessary to establish the third element of the tort.

[53] For the reasons I have already expressed, the plaintiffs are not entitled to rely on the pre-October 2012 events that occurred in the course of Ms. Johnson Wisotzki’s employment, or the post-October 2012 events that the WSIAT determined arose out of her employment in support of her claim for intentional infliction of mental suffering. The plaintiffs cannot, through the proposed amendments, relitigate the issues that were determined by the WSIAT.

[54] For these reasons, these paragraphs must be struck out from the statement of claim and the reply. The proposed amendments are denied.

The Human Rights Code Allegations

[55] The allegations relating to breaches of the Human Rights Code are at paragraphs 1(a)(iv), 10, 11, 21, 22(d), (h), (i), (n), (o), (r), (t), (w), (x), 23, 24, 25, 27, 28(b), (c), (i), (j), 29, 34, 56, 57 and 58 of the statement of claim. The defendants’ position is that the paragraphs in the statement of claim and the proposed amendments relating to the alleged failure to address a “poisoned work environment” are statute-barred by the WSIAT decision and cannot be recast as an alleged breach of Part I of the Human Rights Code. The defendants further argue that if I accept this submission, then the plaintiffs’ allegation that Ms. Johnson Wisotzki was not paid at the same rate as her male co-workers performing the same work is a “standalone” claim and must be struck out as contrary to s. 46.1(2) of the Code.

[56] Section 46.1(1) of the Human Rights Code allows a party to be compensated in a civil proceeding for a breach of Part I of the Human Rights Code. Section 5 (employment) and s. 7 (harassment because of sex in the workplace) are under Part I of the Human Rights Code.

[57] The right provided by s. 46.1(1) of the Human Rights Code is qualified by s. 46.1(2). Section 46.1(2) of the Human Rights Code prohibits the commencement of an action based solely on a breach of Part I of the Human Rights Code. The question is whether a plaintiff’s pleading discloses a reasonable cause of action that does not arise solely from a breach of the Code (Jaffer v. York University, 2010 ONCA 654, at para. 44).

[58] With respect to the allegations regarding a poisoned work environment, I agree with the defendants that the plaintiffs cannot recast these allegations as an alleged breach of the Code.

[59] The WSIAT determined that the harm to Ms. Johnson Wisotzki which would form the basis of an action for breach of the defendants’ obligation to provide her with a safe work environment is the same harm which forms the basis of her claim for personal injury. The plaintiffs now attempt to recast the alleged breach as a failure by the defendants to address a poisoned work environment, contrary to the Human Rights Code. The difficulty for the plaintiffs is that the poisoned work environment is alleged to have been created by the behavior and comments of Ms. Johnson Wisotzki’s supervisor – the same factual basis for the claims the WSIAT determined are taken away by the Act.

[60] Accordingly, the paragraphs related to an alleged poisoned work environment are struck out from the statement of claim. The proposed amendments are denied.

[61] The remaining Human Rights Code allegation and the sole remaining claim on behalf of Ms. Johnson Wisotzki is that the defendants refused to pay her at the same rate as male employees performing the same work. Based on s. 46.1(2) of the Human Rights Code and the Court of Appeal’s decision in Jaffer, this allegation cannot exist as a standalone claim.

[62] Accordingly, the paragraphs associated with this claim are struck out from the statement of claim. The associated amendments are denied.

Paragraphs 59 (Punitive Damages) and 60 (Loss of Care, Guidance, Companionship)

[63] As set out in paragraph 59 of the statement of claim and the proposed amendments (two paragraphs), Ms. Johnson Wisotzki’s claim for punitive damages appears to be based on the defendants’ alleged conduct in relation to the workplace environment and their conduct following Ms. Johnson Wisotzki’s departure from the workplace, including the October 2013 surveillance. The WSIAT determined that Ms. Johnson Wisotzki’s claim for punitive damages is taken away by the Act, except in relation to breaches of human rights and discriminatory treatment, or arising from the October 2013 surveillance. As I have determined that the claims arising from alleged breaches of the Human Rights Code and the October 2013 surveillance cannot be maintained, it follows that Ms. Johnson Wisotzki’s claim for punitive damages cannot be maintained. Paragraph 59 of the statement of claim is struck out and the associated proposed amendments are denied.

[64] Paragraph 60 of the statement of claim and the proposed amendments address the claims of the plaintiffs, other that Ms. Johnson Wisotzki, for loss of care, guidance and companionship, pursuant to s. 61 of the Family Law Act. The combined result of the WSIAT’s decision and my decision on these motions is that none of the claims advanced on behalf of Ms. Johnson Wisotzki can be maintained. Accordingly, it follows that the Family Law Act claims must also be struck out.

Conclusion

[65] The plaintiffs’ motion to amend the statement of claim in the manner proposed is dismissed.

[66] The defendants’ motion is granted. The following paragraphs are struck out from the statement of claim, without leave to amend: 1(a)(i), 1(a)(ii), 1(a)(iii), 1(a)(iv), 1(a)(v), 1(b)(iv), 1(c), 10, 11, 12, 13, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 44, 45, 50, 52, 53, 56, 57, 58, 59 and 60.

[67] The following paragraphs are struck out from the reply, without leave to amend: 14, 15, 16 and 17.

[68] The plaintiffs have also requested that the court set a timetable for the remaining pre-trial procedures in this matter. The defendants do not oppose the request. I would encourage counsel to confer and reach agreement on a proposed timetable, which may then be provided to me for consideration, through the Trial Coordinator.

Costs

[69] The defendants have been successful on both motions. I would encourage the parties to agree on costs. In the event they are unable to do so, the parties may make written submissions limited to a maximum of three pages, double-spaced, exclusive of a costs outline and any offers to settle. The defendants shall deliver their costs submissions within fourteen days of the date on which this endorsement is released. The plaintiffs shall deliver their costs submissions fourteen days following the receipt of the defendants’ costs submissions.

Madam Justice Robyn Ryan Bell Date: August 3, 2018