HomeMy WebLinkAbout1989-0340.Lister.89-12-22I ~, " ".." , ' '' ONTARIO EMPLOY~"S DE LA COURONNE
t ,' - ~ CROWNEMPLOYEES DEL'ONTARIO
' ~ GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO, MSG 1Z8-SUITE 2~00 TELEPNONE/T'~L~'PHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8- BUREAU 2100 (4t6) 598-0688
340/89
IN TRE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ,-
Before
TRE GRIEVA/~CE SETTLEMENT BOARD
Between:
OPSEU (Lister)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
Before:
J.W. Samuels vice-Chairperson
J. McManus Member .,
F, Collict Member
For the Grievor: L. Trachuk Counsel
Cornish & Associates ,.~..
Barristers & Solicitors
For the Employer: R. Anderson Counsel
Legal Services Branch
Ministry of Community &
Social Services
Hearing: September 20, 1989
(with written argument)
Introduction ,
The grievor is a nurse at the Huronia R~egional Centre, a facility for
the developmentally handicapped. In the early afternoon on October 9,
1988,.during her shift, she was sexually assaulted by a male resident on the
premise's of the Centre. She suffered physical, psychological, emotional
and financial damage.
The grievor filed a claim, with the Workers' Compensation Board
immedia.tely following the assault, and she has received compensation'
under the Workers' Compensation Act.
In addition, she filed the grievance before us. The grievor alleges
that the Ministry violated Article i8.1 of th6 collective agreement, which
reads:
Tile Employer shall continue to make reasonable
provisions for the safety and health of its employees
during the hours o4 their employment, it is agreed
that both the Employer and the Union shall co-oper-
ate to the fullest extent possible in the prevention of
accidents and in the reasonable promotio.n of safety
and health of ail employees.
And she claims damages to compensate her for.the physical, psychological,
emotional and.financial harm she suffered as a result of the assault::~ Thcs6
damages include out-of-pocket losses, and genera damages. As welt, site
requests an order obligating the Ministry to take various ·steps to ensure
that reasonable provision is made for her health and safety.
The claim for damages is expressed as follows:
(a) Payment to the Grievor of the difference between what
the Grievor would have received if she had worked for
the Employer from October 10,·1988 to May 1, 1989, in
effect being the difference between Workers'
Compensation benefits actually received and the amount
which would have been received from the Employer.
(b) Prior to the assault, the Grievor's son's income was
made available to the Grievor. Following the
incident, when the Grievor's son moved out of the
family home, the Grievor lost the benefit of her son's
income. As a result of the injuries, the Grievor
became the sole support mother of seven children and
is claiming the amount of lost income from the
Employer.
(c) Since March 1989 the Grievor has been attending the
Barbra Schlifer Clinic in Toronto. This has
necessitated the Grievor renting a car once per week
in order to travel from Orillia to Toronto to attend
the Clinic and the Grievor is claiming the amount of
the car rental costs from the Employer.
(d) The Grievor has been receiving physiotherapy at the
cost of $20.00 per session and is claiming the amount
of the physiotherapy costs from the Employer.
(e) The Grievor is claiming from the Employer in addition,
general damages'for physical and mental distress
suffered.
At the outset of our hearing, the Ministry raised three preliminary
objections--firstly, that the grievance was untimely, having been filed on
March 6, 1989, five months after the incident; secondly, that Article 18.1 is
merely "directory", and does not obligate the employer to actually take any
specific steps; and, thirdly, that this Board cannot award damages for the
grievor's losses.
It was agreed that these preliminary objections would be addressed in
written argument, and that the Board would issue this preliminary award
before we resume the hearing.
In its written argument, the Ministry withdrew its objection
concerning the timeliness of the grievance. So we are left to consider the
application of Article 18.1 and the matter of damages.
4
On the' Al~lication of Article 18.1 of the Collective Avrcemerlt
This Board has considered Article 18.1 a number of times, and' has
made' it Clear that the Board cohsiders the provisior~"to offer specific rights
to employees. Article i8.1 is not simply "directory".
In Gonneau, ~227/81 (Teplitsky), the grievor was in her vehicle and
slid into another vehicle on some 'ice and snoW' in'a M~istry parking lot.
The Board found that there had been a breach of Article 18.1, and'awarded
'the grievor $100~ 'On the meaning and application-of Article 18.1; the
Board said (at'page 6): , ~'
· ~ .. ' '2_;-
In my.o~inion, Section 18 (.1) ~ literally
construed imposes' an obligation-on the' emp~oye'r, the breach
of' which may attract a remedy in ~amages. A literal
' construction Which gives meaning is preferable to a
construction which would treat 18.1 as mere surplusage.
I= would be a dangerou~ ~ractice.. for arbitrators to give
Weight to specdl&.tion as an'a~id' :to';~c6n'struction in the face
... of language capable 6f a sensible 'literal meaning;
I can find no policy reason that would
require us' to ignore the plain meaning of 18.1 'to" prevent
a grievor access to the informal arbitration procedure
as a means Of retires.sing a breach by the employer of such
.a provision. If parties insert language .iB~to a collective
agreement their expectation must be. that it will have
meaning and that a breach, if acreage results, will be
enforced through the grievance 'procedure.
5
This view is supported in, among others, Gillies, 339/82 (Saltman);
Davidson, 595/80 (Samuels); and Union, 581/84 (Kennedy). Indeed, we
weren't referred to any case where the Board said that Article 18.1 was
simply "directory".
In our view, the Ministry has concrete obligations which flow out of
Article 18. I, the specifics of which are to be determined according to the
circumstances of the particular case. And the grievor is entitled to the
enforcement of these concrete 0bligations.- We will have to hear the
evidence and argument in order to determine whether there has been a
violation of Article 18.1 in this case and what steps are necessary to
remedy the situation.
On Damg~,e~ 3n{1 the Worker~' ¢orrtpertsation Act
With respect to the matter of damages, in our view, we are
constrained from awarding damages by section 14 of the Workers'
Compensation Act, RSO 1980, c. 539, as amended. This provision reads:
~,ro~iop.~ of 14. The pre;visions of this Part are in lieu of all rights and
Ac~ ~n
of aa ~sh~ fights of action, statutory or otherwise, to which a worker or
of ,~tion the members of his family are or may be entitled against thc
ea~,~oy~,, employer of such worker, or any executive officer thereof, for
ac. or by reason of any accident happening to him or any indus-
trial disease contracted by him on or after the 1st day of Janu-
ary, 1915, while in the employment of such employer, and no
action lies in respect thereof. R.S.O. 1980, c. 539, s. 14;
1982, c. 61, s. 2; I984, c. 58, s. 6.
This section says that the compensation scheme provided in the Act is
"in lieu of all rights, and rights of actions, statutory or otherwise, to which
a worker ..... may be entitled against the employer of such worker ...... by
reason of any accident happening to him" (emphasis added). Thus, the
legislative compensation scheme takes the place of both rights and rights of
action. And this applies to these rights ~whether they are statutory or
otherwise.
6
The grievor, claims a r_i.g.b.i to the remedy of damages under the
collective agreement. This is a right against the employer which.arises
because of the "accident". Such a right is replaced by the compensation
provided bY the Workers'~ Compensation Act. Section 14 of-.the Act says
·-that the legislative compensation scheme is "in lieu of' such a right.
Section 3(1) of the Workers' Compensation Act pro~ides for the
basic right to compensation in the event of personal injury by accident
arising out. of and in the course of employment. It reads: . -:.
co~. 3.----(1) Where-in any employment, to which this' Part
~tion
~o ~rkcr applies, personal injury by accident arising out of and in the
a~l course of employment is mused to.a worker, the worker and
ae~enaant~ the worker's dependants are entitled to benefits in the ma.ma_er
and to the extent provided under this Act.
Section l(1)(a) of the Act defines the W~)rd "accident", and 'says that
it includes "(i)ra wilful and intentional 'act, 'nOt .being the act of the
worker'": In our case, the assault on the griev,or was an "accident" in this
sense.
Section 8(1) of the Act allows an injured worker to take legal action
against. ,some'person other than the worker's~employer, when this other
person bears some responsibility for the injury to the worker.'
But, the compensation scheme under the Act governs the legal
relationship between the worker and the worker's emPloyer with respect to
the worker's rights against the employer as a result-of the personal injury
by accident arising out of and in the course of emPIoyment. This is the
effect of section 14 of the Act. -.. ...
The workers' compensation system involves a historical trade-off.
Employees gave up the right to obtain .damages from their employersta
right which may have enabled injured employees to be'compensated fully
for out-of-pocket losses and generat~damages, when they could establish
that the employer was at fault. In return~ employees were guaranteed a
7
measure of protection against income losses due to injuries at work,
irrespective of fault.
We were referred to Welland County General Hospital and Ontario
Nurses' Association, Workers' Compensation Appeals Tribunal, 53/87
(Bradbury), reported at (1987), 5 WCAT Reporter 97. In that case, the
Hospital applied to the Tribunal under section 15 of the Workers'
Compensation Act for a determination of whether, in the circumstances of
the case, a nurse's right to grieve under the collective agreement had been
taken away by the Act. Section 15 of the Act provides:
mt~rmi. 15. Any party to an action may apply to the Appeals Tri-
nation
ot ~j~t to bunat for adjudication and determination of the question of
bring action the plaintiWs fight to compensation under this Part, or as to
whether the action is one the fight to bring which is taken
away by this Part, or whether the action is one in which the
right to recover damages, contribution, or indemnity is limited
by this Part, and such adjudication and determination is final
and conclusive. 1984, c. 58, s. 7.
The Tribunal was asked to answer two questions:
1. Whether the Hospital was a "party to an action" as required by
section 15 of the Act.
2. Whether the Appeals Tribunal can make a determination on a
worker's right of action pursuant to section 15 of the Act after an
award has been issued by an arbitrator.
The nurse had been kicked by a patient at work, and had left the
Hospital for the balance of the shift after reporting the incident to the head
nurse. She was also not able to work the following day. She made no
claim to the Workers' Compensation Board, because she considered her
problem to be related to an earlier non-work-related injury. The Hospital
filed its Report of Accidental Injury to the Board, and the Board responded
that it would pay no benefits because the nurse did not receive medical
attention. The grievor did ask the Hospital to pay the sick benefits
8
provided in the collective agreement. The Hospital refused, and the nurse
grieved. The matter went to arbitration before Mr. Weatherii1, and he
decided that the provisions in the collective agreement .were not in conflict
with the Workers~ Compensation Act, because the WCB had determined
that the worker's injury was not compensable..The Ho}pital then applied to
the Tribunal for its ruling.
The Tribunal held that.'
(Parties to a collective agreement) .... can provide
for additional benefits or for recall or job
modification for-w0rker~ who have had
compensable accidents.' There is also nothing to
preclude them from making th.e type of agreement
that was made 'in this case - that is, providing for
sick benefits in c~se~ not covered by workers'
comlpensatiQn. (at pages 5-6 in the unreported
version, and in the middle of page 103 in the
reported version, emphasis added)
The Tribunal then went. on to decide that the term "action" in
sections 8, 14, and 15 +of the Workers' Compensation Act does not include a
grievance arbitration (at page 6 in the unreported version, and at page 103
in the reported version).. This conclusion was 'reached by the folio'wing
reasoning:
· Section 31 of the'Interpretation Act provides that "The
interpretation section of the Courts of Justice Act, 1984 extends to.
ali Acts relating to legal matters";
· Section 1(1) of the' Cou~'ts of Justice Act, 1984 says that:
(a) "action" means a civil proceeding that is not an
application and includes a proceeding commenced in
the Supreme Court or the District Court by:
(i) statement of claim,
(ii)notice of action,
(iii) counterclaim,
(iv)crossclaim,
(v) third or subsequent party claim, or
(vi)divorce petition or counterpetition,
9
and a proceeding commenced in the Provincial Court
(Civil Division) by claim;
(b) "application" means a civil proceeding in the Supreme
Court or the District Court that is commenced by notice
of application or a civil proceeding in the Unified
Family Court, a surrogate court or the Provincial Court
(Family Division) that is commenced by application.
· A grievance procedure under a collective agreement does not fall
within the term "action", as defined in the Courts of Justice Act.
Thus, the Tribunal concluded that the Hospital was "not a party to an
'action' the right to bring which is affected by the Workers' Compensation
Act" (at page 8 in the unreported version, and at page 105 in the reported
version).
The Union argues that, in like vein, a proceeding before the
Grievance Settlement Board is not an "action". We agree.
But the grievor is attempting to enforce a "right" which has been
replaced by the legislative compensation scheme in the Workers'
Compensation Act. This case is not like Gonneau, 227/81 (Teplitsky),
where the Board awarded damages for loss to the grievor's vehicle. Nor is
this case like WeIland County General Hospital, where the injury suffered
was not compensable and the claim was for sick benefits not covered by
workers' compensation. Here the grievor is claiming damages for personal
injury arising out of a compensable accident. This is precisely the type of
loss for which, pursuant to section 14 of the Workers' Compensation Act,
the legislative scheme has replaced other "rights", "statutory or otherwise".
The grievor's "right" to damages under Article 18.1 of the collective
agreement is encompassed by this language. The collective agreement fails
within the rubric "or otherwise".
The Union argues that the Grievance Settlement Board and the
Workers' Compensation Board have concurrent jurisdiction here. But this
10
cannot be so in light of section 14 of' the Workers~ Compensation Act. We
have to abide by the legislative structure Which is made' clear in the
'legislation. We cannot make an award which would be contrary to section
14 of the Workers' Compensation Act. We cannot enforce a "fight" Which
has been taken awaY by section 14 of the Act.
The Union argues th'at "A claim under the' WCA is different from
the remedy requested for the breach of Article i8.1-of the Collective
Agreement. The remedy requested for the breach of the Collective .--
Agreement is one for damages. The WCA provides for limited
compensation for' time lost due to personal injury". But this is an attempt '
to-draw a distinction which is meaningless in light of section 14 of the
Workers' Compensation Act. The compensation provided under the Act is
"in lieu of all rights ...... statutory or otherwise, to which a worker .may be
entitled against the employer. ~f such worker ..... by reason of a,ny accident
happening to him ..... while in the employment of such employer". The
claim for damages under Article 18.1 is a fight which the griev0r has
against the employe~ by reason,of an accident at work. It may be that, if
we were to award damages under Article 18.1, the heads of damage and the
quantification of damages would differ from the way in which .the
grievor's compensation is calculated under the Workers' Compensation'
Act. But section 14 is concerned with the sourco of the fight to damages,
not the way in which the damages are calculated. If the "fight" to damages
against the employer is ."by reason of any accident happening to'
him ..... while in the employment of such employer", such fights, statutory
or otherwise, have been replaced by the legislative cgmpensation scheme.
.On the Constitutionality of ~ection 1,4. of the Workers'
Compensation Act
Neither of the parties raised the question of the constitutionality of
section I4 of the Workers' Compensation Act, but the issue has come up
11
before the courts in several jurisdictions, and it would be useful for us to
make some comment on this matter.
In Re Terzian et al and Workmen's Compensation Board et al
(1983), 148 DLR (3d) 380, 42 OR (2d) 144, 6 CRR 212, the Ontario
Divisional Court, in a very brief judgment by Mr. Justice Krever, held that
the prohibition of the right to sue the employer for damages did not violate
the right to "security of the person", found in section 7 of the Canadian
Charter of Rights and Freedoms.' Section 7 provides: --
Everyone has the right to life, liberty and security
of the person and the right not to be deprived
thereof except in accordance with the principles
of fundamental justice.
Furthermore, the Court held that the prohibition of the right to sue for
damages did not violate "any charter-protected rights otherwise than in
accordance with the principles of fundamental justice", and even if there
were such a violation, this could be "demonstrably justified in a free and
democratic society".
This decision was followed by another panel of the Ontario
Divisional Court in Ryan v. W.C.B. (1984), 60AC 33.
The decision in Re Terzian was followed by the Supreme Court of
Alberta in Budge v. W.C.B. (1987), 56 AR 386 (QB), reversed on other
grounds at (1985), 66 AR 13 (CA).
These three decisions were made before section 15 of the Charter
came into effect.
Following the coming into effect of section 15, a different course
was taken by Mr. Justice Hickman in the Newfoundland Supreme Court in
Piercey v. General Bakeries Ltd. (1986), 31 DLR (4th) 373. He decided
that sections 32 and 34 of The Workers' Compensation Act in
Newfoundland, which are similar to sections 14 and 15 of the Ontario Act,
were ultra vires by virtue of section 15 of the Canadian Charter of Rights
and Freedoms. Section 15(1) of the Charter provides:
Every individual is equal befor6 .and .under the
law and has the right' to the equal protection and
equal benefit of' .th6 laW without discrimination
and,An particular, without discrimination based
.- -on' race, national or ethnic .~rigin, colour,
~' religion, sex, age or mental or physical disability.
Mr. justice Hickman reas.0ne.'d as follows (at pages 383-389):
I shall approach the question raised, under the Charter in the
two steps suggested by the Ontario Court of Appeal in Re Federal
· . Republic of Germany and Rauca (1983), 145 D.L,R, (3d) 638 at p.
654, 4 C.C.C. (3d) 385, 41 O.R. (2d) 225:'
First, it has to be determined whether the guaranteed f~ndardental right or
freedom ha~ been infringed, breached 6r denied. If the answer to that
· question is in the affirmative, then it must be determined whether the denial
or limit is a reazonable one demonatrably justifiable in a free and democratic
society.
It is the. plaintiff's contention that the fight to litigate in the
courts is a fundamental fight of every citizen. The fundamental
freedoms guaranteed by the Chm'ter and enumerated in .s. 2 deal
with individual liberties while any other fundamental rights or
liberties, will have to. be foun. d. either expressly or by necessary
· intendmefit in other provisions of the Charter. The plaintiff argues
that the fundamental right to. litigate in the courts is found in s.
15. As the .right c. laimed by the plaintiff is not one of the specified
fundamental fights, .the ·onus rests squarely upon .her to show that
the relief she seeks is a fundamental right guaranteed by the
Charter.
The 'question posed by the plaintiff is whether an individual is
denied equality . "before and under the law" and denied "equal
protection and equal benefit of the law without discrimination" if
such individual is denied access to the.courts because.as a member
of a designated group.or class of persons, he or she is precluded,
by statute fi'om pursuing his or her rights in a court of law. The
question can be accurately put another way: does the substitution
of a statutory tfibunal in place of a court of ]aw for the purpose of
determining whether compensation is payable to an injured
worker or his dependents in accordance with-the provisions of the
Workers' Compensation Act and to fix the amount of compensation
within the maximum sum provided under the Act regardless of
the magnitude of the loss suffered, deprive the worker or his
dependents of a right entrenched by s. 15 of the Charter?
It is difficult to conceive that a victim, who has suffered
damages as the result of the negligence of a third party, could
enjoy the equality and protections of the law so clearly contem-
plated in s, 15 of the Charter if such person's right of redress in
the courts is restricted or denied. Of all the institutions required
to ensure the well-being of a democratic society, the courts alone
stand f~ee and totally independent of Parliament, the Crown and
any individual or group of individuals. The courts acting through
their inherent jurisdiction, strengthened by the clear intention of
the framers of the Charter, stand between the would-be oppressor
and the intended victim; between the Crown and the accused,
between the state and the individual and between the tortfeasor
and the sufferer. There is no doubt that courts have the
machinery, power and legal skills to guarantee any citizen the
rights enshrined in s. 15 of the Charter. On the other hand,
statutory tribunals, such as the Workers' Compensation Commis-
sion, created for the purpose of carrying out the will of the
Legislature, do not have the same unimpaired independence or
knowledge of the law and the skill to interpret same which the
judiciary and courts have and must continue to enjoy. No
substitute has been devised, to date, to replace the courts as the
guardian of the liberty and freedom of all Canadians and to
deprive a class of citizens of access to the courts is at variance
with the intent of the Charter and in particular, s. 15 thereof.
Counsel for the defendant argued that Canadian courts have
conclusively dete~w~ined that significant matters are within the
exclusive jurisdiction of Workers' Compensation Commissions. It
then follows, so the defendant's counsel says, that as there was no
right of access to the courts for the purpose set forth in s. 34,
there can be no contravention of s. 15 for the reason that at the
time the Charter became law, there was no existing right to
protect. Such argument begs the question raised by the plaintiff.
Section 15 creates, and where appropriate, enshrines cel'~ain
rights. The fact that pre-Charter provincial legislation had denied
a class of citizens a right which was subsequently created and
enshrined in the Cha~'ter does not give validity to such offending
legislation. The "grandfather" principle does not apply to legis-
lation which is at variance ~ith the rights protected by the
Charter.
For these reasons ! conclude that ss. 32 and 34 of the Act
infringe upon and deny the plaintiff a fundamental right
guaranteed under the Charter.
Such conclusion brings me to the final issue, namely, whether
the denial or limit contained in the impugned sections is a
reasonable one demonstrably justified in a free and democratic
society. When once it has been determined that a guaranteed
right has been infringed, breached or denied, the onus then shifts
to those defending the integrity " of the impugned legislation to
satisfy the court that the limits prescribed therein can 'be
demonstrably justified in a free and democratic society. See
Hunter e~ al. v. Southam Inc. et al. (1984), 11 D.L.R. (4th) 641 at
p. 660; 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, sub nora. Southam Inc.
v. Director of Investigation & Research of Combines Investigation
'~Branch et al.~ [1984] 2 S.C.R. 145 at p. 169, where Dickson C.J.C.
said:
The phrase "demonstrably justified" puts the onus of ju~stifying a timitation
on a right or'freedom set out in the Charter on the party seeldng to limit.
It is appropriate to examine the history of workers' compen-
'sation~ legislation for the purpose of establishing .its aims and the
· intended consequences of same. In that regard the evidence of
Kenneth Harding, executive director of the Association of '-
Workers' Compensation Boards of Canada, is helpful. The first
Workmen's Compensation Act, 1897 (U.K.), c. 36, was enacted in
the United Kingdom in 1897 and was replaced in that country in
1925 when the Parliament at Westminster passed a new
Workmen's Compensation Act, 1925 (U.K.), c. 84. The effect of
such legislation was to impose absolute liability upon-an employer
for injuries sustained by an employee in the course of his
employment and to fix the amount recoverable by an employee
from his employer in such cases. This legislation had the effect of
compelling an employer to obtain insurance against such risk or to
- be a Self-insurer. similar legislation was in force in Newfoundland
until the enactment of the Work~ne~'s Compensation Act, 1950
(Nfld.), No. 24. That A~t created a Workers' Compensation Board
and denied a workman access to the courts for the purpose of
recovering damages from his employe~- or an employee in any
industry enume'rated~as being ~rithin the scope of that part of the
Act applicable to such employer.
Most~, if not all, Canadian provinces' enacted legislation, similar
to that which is now the subject-matter of this hearing, for the
purpose of eliminating the question of fault and providing a vehicle
for the speedy determination of an injured worker's entitlement to
. compensation. This legislation had the effect of imposing upon
employers a no-fault scheme of insurance. This no-fault scheme
was designed to provide speedy assessment of entitlement by the
injured worker or his 'dependents to compensation benefits.' In
order to accomplish that desirable objective, the legislation eradi-
cated the common law defences of voIen~i non fit injur~a, common
employment and contributory negligence. In return, the worker
and his dependents were restricted to recovering the amount
determined by the board regardless of the nature and extent of
the injuries or financial loss incurred as the results of the
negligent actions of his employer, whose only contribution to his
victim was the payment of an annual assessment imposed by the
board on all members of his class. The benefits created by the
impugned legislation, such as the elimination of the common law
defences I have enumerated, the establishment of a scheme of no-
15
fault insuran?e, and the protection of the employer against claims
for damages arising out of negligence on his part toward an
employee, are salutary and constitute a reasonably satisfactory
response to the perceived needs of society.
The question to be answered in this case, is whether this
acceptable goal can be achieved and maintained without depriving
a workman or his dependents of access to the courts for the
purpose of claiming full compensation for the loss sustained as the
result of an employer's negligence. The practice and workmen's
compensation law in some countries strongly suggest that such
goal can be attained without denying an injured worker or his
dependents access to the courts for the purpose of recovering
damages in excess of the compensation provided under the Act.
In the United Kingdom the right of tort action has been
retained while at the same time conferring upon workmen or their
dependents, where appropriate, the absolute right of recovery of
established workmen's compensation benefits. Kenneth Harding
summarized the different workmen's compensation systems which
exist throughout the world by swing that generally speaking,
there are two types. One system retains the fight of tort action
but provides a minimum level of benefits which are available to all
workmen and their dependents regardless of fault. The other
system totally eliminates the right to sue an employer but all
workmen and their dependents are entitled to compensation fixed
by the board without regard to fault. The impugned legislation
falls into the second category.
In MacKay v. The Q~een (1980), 114 D.L.R. (3d) ~93 at p. 424,
54 C.C.C. (2d) 129, ~t982] 2 S.C.R. 370 at p. 408, McIntyre J.,
when referring to s. l(b) of the Canadian Bill of Rights, which
preserves "the right of the individual to equality before the law
and the protection of the law", said:
It 'must not however be forgotten that, since the principle of equality before
the la~v is to be maintained, departure shall be countenanced only where
necessary for the attainment of desirable social objectives, then only to the
extent necessary in the circumstances to make possible the attainment of such
objectives.
That very appropr/ate judicial direction of McIntyre J. applies
with even greater force to s. t5(1) of the Charter which, for the
purpose of insuring a very broad interpretation of that section,
added to the "equality before the law" provisions found in the Bill
of Rights equality "under the law, equal protection of the law and
equal benefit of the law".
If one uses an holistic approach when interpreting the Charter,
he or she will conclude that the cornerstone of that noble
document is that the law shall be equally applied to all Canadians
and that the somewhat restricted escape hatch ostensibly provided
in s. 1 shall be used very sparingly indeed and only for the most
compelling reasons. In my view, the courts when called upon to
interpret or implement the Charter, should not be timid but
rather, should apply the words of Lord Denning M.R. who, when
referring to the Great Charter of 1214, in his book, Wtzat Next i~
the Law (1982), wrote: "It flows into the estuaries and up the
rivers. It cannot be held back."
16
" The undeniable fact is that any Canadian whose fights have
been adversely affected by the negligence of another may seek
redress in the courts against such tortfeasor and in the event of
liability being established may recover his proven damages in
accordance with well-established principles of common law in that
regard. One group of Canadians whose fights, in that regard, are
restricted are those who fall into the class provided in the Act
which class embraces the plaintiff. If I may put it another way,
the unreasonableness of the restrictions in that regard stands out
as a'n intolerable blot upon the legislative landscape of a free and
democratic nation.
In R. v. Oak,s (!986), '26 D.L.R. (4th) 200, 24 C.C.C. (3d) 321,
[1986] i S.C.R. 103, 65 N.R. 87, the Supreme Com't of Canada
reviewed the central critefia which must be satisfied to establish
that a limit is reasonable and demonstrably justified in a fl'ce and.
democratic society. Dickson C.J.C., dealing with an attempt to
invoke s. 1 for the purpose of justifying a violation of a constitu-
. tional fight protected by-the Charter, said at p. 227 D.L.R., p.
128 N.R.:
A cour~ will also need to know what alternative measures for implementing'
the objective were available to the legislators when they made their decisions.
Applying that principle to this case, the question to be asked is:
can the benefits sought to be conferred or.the social problems
· sought to be eradicated or contained be reasonably achieved
without imposing the limitation upon a'citizen or a class of citizens
which the impugned legislation clearlY contemplates? In my' view,
an alternative remed, y was clearly available to the Legislature.
The legislation could have provided a worker and his dependents
~vith the righ( of speedy recovery of c°mpensa, tion benefits to be
fixed by a board regardless' of fault at the same level now provided
in the Act without eliminating the fight tO'pursue an action in the
courts against a tortfeasor. I conclude, therefore, that ss. 32 and
34 of the Act impose a limit on a fight guaranteed under the
Cha~er which limit is not reasonable and is not demonstrably
justified in a free and'democratic society within the meaning of s.
1.
I am strengthened in my conclusion by the fact that in 1982, the
Legislature of Newfoundland amended the Workers' Compen-
sation Act to allow a worker or his dependents, where an accident
occurred in the course of a worker's employment, to claim against
a person other than his employer while the workeFs entitlement
to compensation under the Act .would continue. This amending
legislation was in response to the needs of dependents of workers
lost on the semi-submersible offshore drilling rig "Ocean Ranger".
Prior to such legislative amendment, a worker under such circum-
stances could either claim compensation under the Act or bring an
action. He could not do both. See An Act to Ame~d tl~e Workers'
Compensation Act, 1982 (Nfld.), c. 11, s. 1 [amending R.S.N.
1970, c. 403, s. 1I]. That section further provided that if a worker
or his dependents brought an action and recovered less than the
amount of compensation he or his dependents were entitled to
receive under the Act, they were entitled to be paid the difference
by the board. Section 1(5) of the 1982 Act provided that where a
worker or dependents "commenced an action in a court of law"
against a person other than his employer and recovered more than
that paid by ~vay of compensation, then unless the commission
orbed'wise approved, the worker was obliged to repay the
commission the amount of the compensation already paid under
the provisions of the Act.
The principle contained in s. 11 of the 1982 Act is contained and
strengthened in s. 33 of the 1983 Act (the "Act"). Section 33(1) of
the Act reads:
33(1) Where a worker sustains an injury in the course of his employment in
such circumstances as entitle him or his dependents to an action
(a) against some person other than an employer or worker; or
(b) against an employer or against a worker of that employer if the
injury occurred otherw/se than in the conduct of the operations
usual in or incidental to the industry carried on by the employer,
the worker or his dependents if they are entitled to compensation, may claim
compensation "and" may bring an action.
(Emphasis mine.)
While s. 33 of the Act restrict~ the right of a worker to bring an
action against his employer to the factual sitaution described in
33(i)(a), it does establish the principle that a worker may receive
compensation from the dommission and still recover damages from
a person other than his employer or under certain circumstances
directly from his employer. This recent change in the historical
denial of any right of action against any person in any class desig-
nated in the Act, by a worker entitled to workers' compensation
benefits, leads to the irresistible conclusion that the Legislature
can achieve the principaI objectives Of the Act without denying
workers or their dependents the right to bring an action in the
courts for damages arising out of injuries received in the course of
their employment.
i8
In 1987, the Ontario Highr Court of Justice'had the opportunity to
consider again the constitutionality of the prohibition' of the, fight to sue for
damages in the Workers' Compensation Act. In Roncato et al v. O'Brien et
al (1987), 17 CCEL 290, Mr. Justice Vannini decided that the limitations in
the Act were contrary.to section 15 of the Charter, but they .were justified
under section ~. of the Charter. That is, the provisions, in the Act were
within "such reasonable limits prescribed by law as 'can be demonstrably
justified in a free and:democratic society". Mr. Justice Vannini considered
Re' Terzian and noted that it was followed in Ryan and Budge~ He
discussed Mr..Justice Hickman's decision in Piercey at some length.' He
noted that Mr. Justice Hickman had not referred to Re Terzian or Ryan.
He said that Piercey was in direct conflict with the earlier Ontario
decisions, and he had to determine whose authority was binding' on him.
He concluded (at page 298):
The decision in Re Terzian and ttyan is of an. appellate Court
and together they represent the views of six Judges of that Court.
The decision in Piercey, is of atrial -Court, albeit of the Chief Justice.
of that Court, While Piercey is persuasive, the decision in Re Terzian
and in Ryan, being decisions of an appellate Court, are more
persuasive. The principle of stare decisis compels me to follow the
views of the appellate Courts of this province.
At my level in the judicial hierarchy of this province I hesitate
to 'determine .the constitutional issues raised with the same
determination expressed by the Chief Justice of Newfoundland
regardJess of the consequences of his decision. I prefer, instead, to
take a timid approach and to leave it to the appellate Courts for a
definitive determination.
While I have no hesitation in finding that the provisions in
question of the Workers' Compensation Act do constitute a
limitation of the right guaranteed to Roncato by s. 15 of the Charter
to litigate his claim against the board in the Courts on the authority
of Re Terzian and of Ryan, I do find that such provisions are
justified under s. i of the Charter.
In like vein, we are of the view that we are bound to follow the
earlier Ontario decisions. Even if section 14 of the Workers'
19
Compensation Act is contrary to section 15 of the Charter, it is justified
under section 1 of the Charter.
Conclusion
In conclusion, the Ministry has concrete obligations which flow out
of Article 18.1 of the collective agreement, the specifics of which are to be
determined according to the circumstances of the particular case. And the
grievor is entitled to the enforcement of these concrete obligations. We ~
will have to hear the evidence and argument in order to determine whether
there has been a violation of Article 18.1 in this case and what steps are "
necessary to remedy the situation.
However, we find that we cannot award damages to the grievor,
because her right to damages has been replaced by the workers'
compensation system.
Done at London, Ontario, this 22nd, day of December , 1989.
-3
.. ~ J.W. Samuels, Vice-Chairperson
"I dissent" (Dissent to follow)
J. McManus, Member
F. Collict, Member