HomeMy WebLinkAboutP-2007-0852.Parrack.08-11-07 Decision
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P-2007-0852
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Grievor
Steven Parrack
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREKathleen G. O?Neil Vice-Chair
FOR THE GRIEVORJack Huber
J. R. Huber Professional Corporation
Barrister & Solicitor
FOR THE EMPLOYERFelix Lau
Counsel
Ministry of Government Services
HEARINGJune 9, 2008.
2
Decision
[1]This 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
[2]For 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.
[3]The 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
3
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.
[4]The 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.
[5]Prior 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
[6]The 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
4
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.
[7]Counsel 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.
[8]Employer 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 Charltoninvolves a breach of The Human Rights Code, which has
quasi-constitutional status, whereas here, essentially the grievor is claiming a breach of
5
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.
[9]Citing 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.
6
[10]Acknowledging 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.
[11] By 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
Without limiting the strict duty imposed by
(2)
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;
7
[12]Further 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.
[13]As 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 Fidlervs.Sun Life Assurance Company [2006] SCC30
(CanLII), [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.
8
[14]As 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.
* * *
[15]At 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 Charltondecision, 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] 2 S.C.R. 157, [2003] SCJ 42
(CanLII), to find that the relevant provisions are at least implied terms in the grievor?s
individual contract of employment.
[16]The 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.
9
[17]The most recent relevant authority from the PSGB is the Charltondecision, 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.
[18]A 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
10
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
was an
jurisdiction because of the fact that the The Occupational Health and Safety Act
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.
[19]The following provisions of the WSIA are pertinent to the question of whether this
grievance is properly before the PSGB:
11
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
12
(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).
13
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.
?
7 Whether loss of earnings has resulted from an injury.
.
8. Whether permanent impairment has resulted from an
injury, and the degree of the impairment.
9. The amount of a person?s average earnings and net
average earnings.
?
14
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).
[20]As 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.
However, the grievance, as framed, is a mix, having a dual focus, on failed prevention
[21]
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
15
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.
[22]The 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.
[23]There 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
16
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)where substantial
132 L.A.C. (4th) 225 (Shime),
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.
[24]In 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
17
any damages would have to be separated out in a manner which respects the divided
jurisdiction and avoids double recovery.
***
[25]In 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.
[26] In 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.
th
Dated at Toronto this 7 day of November, 2008.
Kathleen G. O?Neil, Vice-Chair