Ontario’s most recent budget has proposed amendments to workers’ compensation entitlement based on claims arising from mental stress. At present a worker’s claim must show “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment.” This has been successfully challenged as contrary to the Charter of Rights and Freedoms and hence the amendment is designed to bring the statute into compliance.
The revision, which is intended to become effective January 1, 2018, reads as follows:
13(4) Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.
13(5) A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer 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.
This amendment will have repercussions, however, well beyond its immediate intention. For those workers covered by the statute, roughly 70% of Ontario’s work force, it will very likely bar any form of civil tort claim based on an abusive work environment, including any claim for aggravated damages and or punitive damages, which recently have been substantive.
It may even limit recovery of human rights damages under the Human Rights Code, as unimaginable as that may seem at first blush.
Master Laycock of the Court of Queen’s Bench in Alberta in the March 2013 decision of Ashraf v SNC Lavalin ATP Inc. considered a motion brought by the employer to dismiss the civil action brought by the plaintiff in which it was asserted that he had been bullied by his co-workers.
The plaintiff sued for damages for mental anguish. No constructive dismissal claim was alleged. He remained an employee and was in receipt of disability insurance benefits.
The employer motion was based on the proposition that the Workers’ Compensation Act applied and hence no civil action was possible against the employer. The civil claim was based on intentional and wilful wrongdoing of the employer.
The Court noted section 21 of the Act which denied the right to sue stated as follows:
(1) No action lies for the recovery of compensation under this Act and all claims for compensation shall be determined by the Board.
(2) This Act and the regulations apply instead of all rights and causes of action, statutory or otherwise, to which a worker, the worker’s legal personal representatives or the worker’s dependents are or might become entitled against the employer of the worker by reason of any accident happening to the worker, and no action in respect of that accident lies against the employer. (emphasis added by the court)
In turn, the Act also defined “accident” in a manner, as noted by the Master, which is contrary to its common meaning, as the defined term included a “willful and intentional act” and “disablement”:
Alberta’s statute allowed for workers’ compensation claims based on emotional distress. The court also noted that whether the action was brought in contract or tort was of no moment, as the legislation forbade any civil claim, no matter how pleaded.
The motion succeeded and the claim was dismissed. This decision was upheld by Mr. Justice Mahoney and again by the Alberta Court of Appeal. The employee was allowed to assert that the abusive conduct was constructive dismissal.
Most statutes governing such benefits, including that of Ontario, use a similar definition of define “accident” to include willful and intentional conduct.
The consequences of this decision may be dramatic, particularly given the proposed amendments. Decisions such as the Ontario case of Prinzo v Baycrest, and indeed the moral or aggravated damage claim as set out in Honda v Keays, may be of historical value only where the employee is covered by this legislation.
There remains a further argument that the workers’ compensation statutes may deprive the relevant human rights commission of jurisdiction to award a damage claim for such a violation, given appropriate coverage.
Generally, human rights legislation is considered quasi-constitutional and as such, supersedes any conflicting statute, unless specifically stated to the contrary in the human rights enabling legislation. This principle was stated quite clearly in 2008 by the Nova Scotia Court of Appeal in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) and remains a cornerstone of human rights law.
Apart from the quasi-constitutional status argument, the human rights process does deal with broader issues from a public interest perspective and includes other forms of non-monetary relief, including reinstatement, which is not available by a workers’ compensation claim.
Two consequences may follow. The first is that this decision may have no impact on human rights claims. The second is that it may, at least, effect a claim for compensatory damages and/or lost income claims based on a workplace human rights violation.
The Supreme Court of Canada in its 1996 decision in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., considered a similar conflict between the Quebec Charter of Rights and Freedoms and the workers’ compensation regime of Quebec.
The employee had received compensation under the Quebec workers compensation legislation with the Commission de la santé et de la sécurité du travail (“CSST”) for “an employment injury” which was based on sexual harassment.
She also had commenced a civil action against the alleged harassor and her employer based on improper sexual advances based on a remedy allowed to her under the Quebec Charter.
The employer argued that due to waiver of civil remedy under this legislation that she was barred from civil action. The plaintiff relied upon the wording of the Quebec Charter of Human Rights and Freedoms which provided as follows:
- Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.
- The Charter shall not be so interpreted as to extend, limit or amend the scope of a provision of law except to the extent provided in section 52.
- No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.
The Quebec Charter specifically allowed for an award of exemplary damages. It was noted by the court that the Charter maintained a special status of a quasi-constitutional substance:
Like the statutes that are its counterparts in the other provinces, the Charter, which was enacted in 1975, has a special quasi‑constitutional status. Certain of its provisions thus have relative primacy, resulting from s. 52. By its very nature, such a statute calls for a large and liberal interpretation that allows its objectives to be achieved as far as possible. In this sense, not only the provisions at issue but the entire statute must be examined (see in this regard Ontario Human Rights Commission and O’Malley v. Simpsons‑Sears Ltd., 1985 CanLII 18 (SCC),  2 S.C.R. 536, at p. 547). In Quebec, s. 53 indeed provides that if any doubt as to interpretation arises, it must be resolved in keeping with the intent of the Charter.
Gonthier J., writing for the majority, however, determined that there was no remedy available under the Charter:
I am therefore of the view that s. 438 has the effect of validly barring the victim of an employment injury from bringing an action for damages under the Charter. By making this exclusion, the AIAOD clearly does not violate any of the rights guaranteed in ss. 1 to 38 of the Charter. Moreover, victims of employment injuries are not denied all forms of monetary compensation. Rather, they are subjected to a special scheme, which offers a number of advantages but which allows them to obtain only partial, fixed‑sum compensation. In this sense, and although the point is not determinative, it is worth noting that this Court has already held that a similar ban on civil liability actions by victims of work accidents did not violate s. 15 of the Canadian Charter of Rights and Freedoms (Reference re Workers’ Compensation Act, 1983 (Nfld.), 1989 CanLII 86 (SCC),  1 S.C.R. 922).
The majority opinion did also refer to the right of the individual to file a grievance under a collective agreement and offered these words, obiter, but nonetheless instructive of a view of the remedy of reinstatement and public interest remedies by analogy under the Human Rights Code:
I shall therefore refrain from determining whether a grievance could have been filed in the instant case. If that had been the case, however, it is understood that the arbitrator could not have awarded damages for the prejudice suffered as a result of the employment injury. The exclusion of a civil liability action also applies to the grievance arbitrator. This being said, it is not inconceivable that an arbitrator dealing with such a grievance in these circumstances could have ordered other remedial measures, such as reinstatement or reassignment, if the collective agreement so allowed.
The above words suggest that a public interest remedy and/or reinstatement may survive the claim for workers’ compensation benefits.
The Tribunal in Snow v Honda (Joachim) considered a case which was not argued on this identical basis, as the fact situation was different, but it did raise similar issues.
The facts of this case showed an employee who had applied for and received WC benefits after which an issue arose as to the conditions of his return to active employment. As the WSIB had determined the return to work conditions, the employer unsuccessfully disputed the jurisdiction of the Tribunal to determine if there had been unfair accommodation of the physical disability from a human rights perspective.
The issue, hence, was much different but it did raise submissions that would likely be repeated from the Commission’s perspective, in the circumstance referenced above. The plea of section 26 was made, but it was clearly of different application in this perspective.
Nonetheless the Tribunal stated in sweeping terms that the Code jurisdiction would not be ousted by a request for WC benefits:
Further, I find that section 26 of the WSIA prohibits actions “for or by reason of an accident happening to the worker.” A complaint under the Code is not “for or by reason of an accident happening to the worker.” Mr. Snow’s complaint is for or by reason of alleged discrimination because of disability. Similarly, section 28 bars actions “in respect of the worker’s injury.” Mr. Snow’s complaint is not in respect of his workplace injury, but is in respect of the alleged discrimination he faced because of disability. I find that Mr. Snow is not barred from maintaining his complaint before the Tribunal.
The facts of this case differ from a person whose very claim for WC benefits is the same event that is the offensive conduct under the Code, as in a sexual harassment claim.
The prospective from the Tribunal defending its jurisdiction is predictable. The decision was not reviewed. No reference was made to the Supreme Court of Canada decision in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., referenced above. This may not be the last word on this topic.
All this remains idle speculation for the present moment. Given the amendments as discussed, employers and human rights practitioners should prepare for a new world.