November 18, 2020
The complaining Employee was employed as a housekeeper at a hotel in Niagara Falls, Ontario where she was allegedly harassed and taunted by her colleagues and supervisor for having an unpleasant odour and for other matters related to a diagnosed medical condition.
While still working at the hotel, the Employee filed a human rights application alleging that the Employer discriminated against her on the grounds of sex and disability. Several months later, the Employee resigned and commenced a civil action for constructive dismissal as a result of the alleged harassment that she had suffered at the hotel. While the Employee did not explicitly seek a human rights remedy in her Statement of Claim pursuant to section 46.1 of the Ontario Human Rights Code (the “Code“) – which provides a civil court with the power to order certain remedies if it finds a violation of the Code – the relief she sought was similar to the remedies available under the Code.
The Human Rights Tribunal of Ontario (“HRTO”) dismissed the Employee’s application pursuant to section 34(11) of the Code, which precludes an individual from making a human rights application if they have commenced a civil proceeding with respect to the same alleged infringement of the Code and that proceeding has not been finally determined or withdrawn.
In its decision, the HRTO held that even though the Employee’s Statement of Claim did not explicitly reference the Code, “the facts and issues alleged in the applicant’s Statement of Claim are the same” as those raised in this Application.” Further, the human rights application and the civil claim raised “substantially the same allegations of harassment and a poisoned work environment”, and the damages as described in the Statement of Claim were similar to the damages available under section 46.1 of the Code for “injury to dignity, feelings and self-respect.”
WSIAT Bars Constructive Dismissal Action
Following the HRTO’s decision, the Employer argued that the Employee should be barred from pursuing her civil constructive dismissal action because her claim for chronic mental stress was properly compensable under the Workplace Safety and Insurance Act (“WSIA”). In 2018, the WSIA was amended to give workers the right to claim chronic mental stress benefits from the Workplace Safety and Insurance Board (“WSIB”) under section 13(4).
Accordingly, the Employer brought a “right to sue” application under section 31 of the WSIA, essentially asking the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) to determine whether the Employee’s right to commence a civil action against the Employer was taken away because the Employee was already claiming statutory chronic mental stress benefits under section 13(4) of the WSIA. In response, counsel for the Employee argued that her right to claim for damages in a civil action was only barred by the WSIA in respect of the damages that were compensable under the WSIA. As the Employee would still have had a claim for constructive dismissal as a result of the Employer’s conduct even if she had not suffered mental stress, her right to sue for constructive dismissal and for punitive, aggravated and moral damages, as well as for breaches of the Occupational Health and Safety Act should stand.
Ultimately, the WSIAT agreed with the Employer, holding that the fundamental nature of the Employee’s civil action was a claim for injury resulting from harassment and bullying in the workplace and was therefore statute-barred pursuant to section 31 of the WSIAT. The WSIAT found that each remedy claimed by the Employee in her Statement of Claim was “inextricably linked” to her injury resulting from alleged workplace harassment and bullying, and that therefore her claim was entirely governed by the terms of section 13(4) of the WSIA. In other words, if the facts bring the accident and injury for which a civil remedy is sought under the workers’ compensation framework, the worker is statute-barred from suing in respect of that accident and the associated injury.
In arriving at this conclusion, the WSIAT held that it was making an exception to the general rule that WSIA entitlements do not remove the right to bring an action for wrongful dismissal: “It is only in the exceptional case that this is not so, where the circumstances of the wrongful dismissal claim are inextricably linked to the work injury.”
The WSIAT’s decision sets a problematic precedent for employees who experience harassment on the job. Confining such employees to remedies under the workers’ compensation framework alone will prevent many from accessing legal entitlements – such as notice, termination, and severance – that can only be granted as remedies in civil wrongful termination actions. Moreover, claims for chronic mental stress benefits are subject to onerous criteria set out under WSIB policy. Since 2018, 94 per cent of such claims have been rejected, according to WSIB statistics. Moving forward, counsel advocating on behalf of employees who experience harassment on the job will need to take care in distinguishing the employees’ various claims when drafting pleadings.
Authored by Elie Waitzer, Articling Student