HomeMy WebLinkAbout2015-0618.Grievor.22-02-23 Decision
Crown Employees Grievance Settlement
Board
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180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB#2015-0618; 2016-0497
UNION#2015-0234-0074; 2016-0234-0112
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Grievor) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Daniel A. Harris Arbitrator
FOR THE UNION Ian McKellar
Dewart Gleason LLP
Counsel
FOR THE EMPLOYER Thomas Ayers
Treasury Board Secretariat
Counsel
HEARING February 21, 2021 (final submission)
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Decision
The Proceedings
[1] This decision deals with the implementation of my decision on the merits of the
grievances in GSB file No. 2015-0618 et. al. given September 22, 2020.
Paragraph 1 of the decision on the merits sets out the matters therein determined
as follows:
These proceedings encompass two grievances. In the first grievance the
Union (OPSEU) alleges that the Grievor was subjected to harassment and
subsequent bullying by a co-trainer and his supporters as a result of an
incident, which had racial and sexual aspects, that occurred at a staff
training session, held in 2014, and that grievance also raised an issue of
unjust discipline contrary to article 21.1. That latter aspect of that
grievance was settled before the hearing. This first grievance is dated
April 21, 2015. The second grievance alleges that the Employer failed to
follow agreed-upon protocols. As part of this second grievance the Grievor
alleges that she had been told that she would not be scheduled to work
with the co-trainer. The Union grieves that this agreement was not
honoured and that as a result the Employer failed to take adequate steps
to provide the Grievor with a workplace free of discrimination and
harassment. Further, the Operational Manager who was said to have
inappropriately assigned her, OM Cayton, was also said to have berated
the Grievor thereby violating her right to be treated with dignity and
respect and causing her humiliation. This second grievance is dated May
10, 2016.
[2] In the result, the grievances were allowed. The parties were unable to agree
upon the appropriate remedy. They filed written submissions as to their views of
the remedies to be awarded.
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The Submission of the Parties
[3] The Union submitted at paragraph 1 of its written submission that the highest
possible monetary award should be made in favour of the grievor given the
finding that the grievor had been “discriminated against on the basis of sex and
race when the employer failed to investigate a campaign of hatred against her by
a cohort of her colleagues, exposing her to harassment and a poisoned work
environment”. It said that damages flow from this Board’s statutory mandate to
provide final and binding resolution of employment disputes as well as from its
remedial jurisdiction to enforce the Ontario Human Rights Code (“the Code”).
[4] The Union submitted that I am to engage in an objective assessment of the
impact on the grievor of the breaches found to have occurred in my decision on
the merits. It said that the harm caused to the grievor was significant, and the
quantum of damages should also be significant. It said that the systemic nature
of the harassment experienced by the grievor and the Employer’s decision to
ignore the turmoil and failure to investigate it also support a significant award.
[5] The Union reviewed the Board’s jurisprudence as well as that of the Human
Rights Tribunal of Ontario cited below. It submitted that I should be guided by
the HRTO jurisprudence. The Union also reviewed the evidence on the merits
with respect to the severe impact on the grievor of the harassment and
discrimination she suffered because of the Employer’s failure to act.
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[6] The Union relied upon the following authorities: OPSEU v Ontario (Solicitor
General), 2020 CanLII 74251; Charlton v Ontario (MCSCS), 2007 CarswellOnt
4099; OPSEU (Ranger) v Ontario (Ministry of Community Safety and
Correctional Services) 2013; CanLII 50479; A.B. v Joe Singer Shoes Ltd., 2018
HRTO 107; O.P.T. v Presteve Foods Ltd., 2015 HRTO 675; British Columbia
(Workers' Compensation Board) v Figliola, 2011 SCC 52; Parry Sound (District)
Welfare Administration Board v OPSEU, Local 324, 2003 SCC 42; Newfoundland
Association of Public Employees v Newfoundland (Green Bay Health Care
Centre), 1996 CanLII 190 (SCC); Sanford v Koop, 2005 HRTO 53 (CanLII);
Human Rights Code, R.S.O. 1990, H.19.
[7] The Employer did not dispute that I have the jurisdiction to enforce the Code, but
it disagreed that the facts here attract damages “at the highest scale” or any
amount “beyond the amounts awarded” in the decisions relied upon by the
Union. The Employer submitted that the GSB has no jurisdiction to award mental
distress damages to the grievor. Its position in this regard is captured in
paragraph 4 of its written submission, which reads as follows:
The Employer submits that the GSB has no jurisdiction to award
damages to the Grievor for mental distress, and other WSIA-
compensable injuries, as a result of the Employer’s actions or
inaction in this case. This follows from the consistent line of
jurisprudence that found the Board cannot award a Grievor damages
if the “accident or disease is or was compensable under the Workers
Compensation Act or Workplace Safety and Insurance Act (“WSIA”),
whichever applies.” The GSB decision that grounded this finding was
upheld by the Ontario Court of Appeal.
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[8] The Employer thoroughly canvassed this position, including a review of the
jurisprudence said to have led to this result as well as the cases that it said had
subsequently followed it.
[9] The Employer also submitted, in the alternative, that the date of filing the
grievances truncates the period of time for which damages may be claimed. It
said that although the Union may lead evidence of events stretching back roughly
three years (see Lunan, infra) to prove harassment or discrimination, monetary
redress is capped at 30 days prior to the filing of the grievance. The Employer
submitted that the grievor here had numerous opportunities to file a grievance in
the period after the dildo-event on June 3, 2014. It said that ten months had
elapsed from the time of the dildo incident to the filing of the grievance. The
Employer’s written submission at paragraph 19 reads, in part, as follows:
The precipitating incident, which led directly to a finding of
discrimination on the basis of race and sex occurred nearly ten (10)
months prior to the Grievor’s filing of a grievance. While the Grievor
chose to make a complaint a month later, she elected not to file a
grievance at the time, or in the months following, when the Grievor
was being impacted by strife that had arisen directly out of the
incident.
[10] Accordingly, the Employer submitted that there could be no remedy for the dildo-
event itself, nor afterwards up to 30 days prior to the filing of the grievance.
[11] In the further alternative, the Employer submitted that the Union’s submissions
on the quantum of damages far exceed what would be reasonable in this matter.
It reviewed the facts of the cases relied upon by the Union. It said that the more
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egregious behaviour, its impact on the grievors in those matters, and the quality
of the medical evidence led to establish the impact, sets those cases far apart
from this matter and calls for a dramatically reduced quantum of damages here
than that requested by the Union.
[12] The Employer also submitted that the GSB jurisprudence upon which it relies is
far more applicable to establishing an appropriate quantum of damages.
[13] The Employer relied upon the following authorities: OPSEU (Monk et al) v.
Ontario (Ministry of Community Safety and Correctional Services and Ministry of
Children and Youth Services), GSB 1995-1694, April29, 2010 (Gray); OPSEU v.
Ontario (Community Safety and Correctional Services), 2013 ONCA 406
(CanLII); Decision No. 2157 09, 2014 ONWSIAT 938, dated April 29, 2014;
Decision No. 1945 10, 2015 ONWSIAT 223 dated January 27, 2015; Wilson v.
Ontario (Ministry of Natural Resources and Forestry), GSB 2016-1556,
September 21, 2017 (2017) (Dissanayake); Rosati v. Ontario (Ministry of
Community Safety and Correctional Services), GSB 2015-0468, 2015-1818,
January 23, 2018 (2018) (Anderson); Ontario Public Service Employees Union v.
The Crown in Right of Ontario 2019 ONSC 1077; WSIAT Decision No. 2678 17
2017 ONWSIAT 2826; Foley et al v. Ontario (Ministry of Community Safety and
Correctional Services), GSB 2015-3339. November 19, 2018 (2018) (Williamson;
WSIAT Decision No. 2157 09I (Merits) 2010 ONWSIAT 2729; OPSEU
(Patterson) v. The Crown in Right of Ontario (Ministry of Community Safety and
Correctional Services), 2017 CanLII 25459 (ON GSB) GSB 2015- 1660, March
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21, 2017 (2017) (Briggs); OPSEU (Lunan) v. The Crown in Right of Ontario
(Ministry of Labour), GSB 2013-0513, May 15, 2015 (Leighton); OPSEU (Van
Schouwen, et al) v. The Crown in Right of Ontario (Ministry of the Attorney-
General), GSB 2007-3000, August 6, 2010, (2010) (Briggs); OPSEU (Carson) v.
Ontario (Ministry of Community Safety and Correctional Services), GSB 2005-
1545, July 19, 2011 (2011) (Herlich); Charlton v. Ontario (Ministry of Community
Safety and Correctional Services), PSGB 2006-0291, June 27, 2007 (2007)
(Carter); Ranger v. The Crown in Right of Ontario (Ministry of Community Safety
and Correctional Services), GSB 2002-2375, July 24, 2013 (Leighton); Ranger v.
The Crown in Right of Ontario (Ministry of Community Safety and Correctional
Services), GSB 2002-2375, January 18, 2010, (2010) (Leighton); A.B v. Joe
Singer Shoes Ltd.., 2018 HRTO 107; O.P.T. v. Presteve Foods Ltd., 2015 HRTO
675; Groves v. The Crown in Right of Ontario (Ministry of Community Safety and
Correctional Services), GSB 2008-3971, October 14, 2014, (2014) (Mikus); Press
v. The Crown in Right of Ontario (Ministry of Health), GSB 2003-1461, October 9,
2007, (Mikus); OPSEU (Sager, Shelley et al) and The Crown in Right of Ontario
(Ministry of Transportation), GSB# 2000-0377, October 6, 2004 (Mikus); Tardiel
et. al v. The Crown in Right of Ontario (Ministry of Community Safety and
Correctional Services), GSB 2005-1443, December 16, 2010 (Albertyn).
[14] The Union submitted in reply that “the Board already has heard arguments from
the parties on the application of the WSIA to this case in closing submissions and
decided in the Union’s favour that section 26 of the WSIA does not constitute a
bar to these proceedings”. The Union submitted that it was “an abuse of
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process” for the Employer to seek to relitigate this issue. The Union’s
submission that this has already been dealt with at the hearing on the merits, is
set out in paragraphs 7, 8 and 9 of the Union’s submissions in reply here, which
read as follows:
7. In reply, the union argued that the case was not one of a WSIB-
compensable injury. Rather, the grievances concerned alleged
harassment and discrimination contrary to the Ontario Human Rights
Code and the related provisions of the collective agreement. An
alleged breach of human rights legislation and the collective
agreement protections against discrimination and harassment
represents a different right of action than an action in relation to an
accident happening to the worker in the course of employment. The
union asserted that the Board did have jurisdiction to hear and
determine the grievances.
8. In the event, Vice-Chair Harris held that there had been breaches
of the collective agreement and of the Human Rights Code. In
declaring that such breaches occurred, and in remitting the balance
of remedy to the parties, Vice-Chair Harris dismissed the employer’s
argument that the WSIA barred the grievances.
9. Put differently, Vice-Chair Harris could not have found a breach of
the collective agreement and a breach of the Human Rights Code if
the grievor’s right of action was barred by operation of section 26 of
the WSIA. Vice-Chair Harris’s award on the merits was therefore
necessarily dispositive of the employer’s WSIA argument.
Analysis and Decision
[15] I turn first to the issue seemingly joined between the parties relating to the
application of the Monk decision as a bar to the grievor’s damages claims in this
matter. The Employer’s submissions properly set out that mental stress is
compensable under the WSIA. Accordingly damages for mental stress losses
that are compensable pursuant to the WSIA are not available to a Crown
Employee whose grievance for such a loss is before the GSB. As discussed in
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Monk, and other cases, the workers' compensation framework, which is currently
encompassed in the WSIA, traded-off the right to sue an employer for losses due
to an accident arising out of and in the course of employment for compensation
under the Act.
[16] It is s. 26 (2) of the WSIA that currently formulates the historic “trade-off” by
which worker’s receive benefits for workplace accidents and injuries on a no-fault
basis; section 26(2) reads as follows:
26. …
(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.
[17] Turning to Monk, supra, Vice-Chair Gray’s analyses were upheld by the
Divisional Court and the Court of Appeal as correct, while holding that the
standard of review was that of reasonableness. The Court of Appeal understood
the issue before Vice-Chair Gray to be that:
The parties agreed that the Grievance Settlement Board should
determine the preliminary issue of whether it was precluded from
granting the grievors compensation for their alleged injuries or any
other remedy.
(emphasis added)
[18] The Court of Appeal decided the matter at paragraph 5 of its Endorsement,
which reads as follows:
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[5] The Divisional Court concluded that whether the standard of review
applied was reasonableness or correctness, the judicial review application
should be dismissed. It found that the decision of the Vice-Chair was
thorough and carefully considered, logical and intelligible, justifiable and
transparent. We agree. In our view, it makes no difference whether the
claim is framed in tort or in contract. It is the substance of the claim that
matters. The Vice-Chair was correct in his conclusion that the Board
could not award damages under the collective agreement for
compensable injuries to which the WCA or the WSIA would have
applied.
(emphasis added)
[19] I, of course, am bound by the Court of Appeal's formulation of the ratio decidendi
in Monk. I do note however that the Court of Appeal's rationale for the decision
in Monk, set out in the emphasized portion of the Court of Appeal’s Endorsement
set out above, is very narrow. It does not say that the Board may not deal with
other, legitimate claims that are not compensable through the operation of the
Workers' Compensation Act (WCA) or the WSIA. Accordingly, an injured
worker's other, legitimate claims against their employer, which are not, in
substance, for an accident arising out of or in the course of their employment, are
not statute-barred.
[20] This brings me to the difference between the parties here as to the appropriate
remedy. The Union is not saying that I should award damages to the grievor for
injuries that are compensable under the WSIA. At paragraph 7 of its Reply
Submissions on remedy, the Union reiterated its Reply Submissions, made on
the merits, as follows:
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In reply [on the merits], the union argued that the case was not one
of a WSIB-compensable injury. Rather, the grievances concerned
alleged harassment and discrimination contrary to the Ontario
Human Rights Code and the related provisions of the collective
agreement. An alleged breach of human rights legislation and the
collective agreement protections against discrimination and
harassment represents a different right of action than an action in
relation to an accident happening to the worker in the course of
employment. The union asserted that the Board did have jurisdiction
to hear and determine the grievances.
[21] As observed by the Court of Appeal, it is the substance of the claim that matters.
Here, the substance of the claim is for damages resulting from the breaches of
the Code and the collective agreement protections against discrimination,
harassment and the obligation to provide a safe workplace. Throughout these
proceedings the Union has consistently asserted that the Employer breached
articles 3 and 9, the relevant portions of which read as follows:
3.1 There shall be no discrimination practiced by reason of race,
ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex,
sexual orientation, age, marital status, family status, or disability as
defined in section 10(1) of the Human Rights Code (OHRC).
…
3.3 The Parties are committed to a workplace free from
workplace harassment, including bullying, by other employees,
supervisors, managers,
…
Workplace harassment is engaging in a course of vexatious comment or
conduct against an employee in the workplace that is known or ought
reasonably to be known to be unwelcome.
9.1 The Employer shall continue to make reasonable provisions
for the safety and health of its employees during the hours of their
employment. It is agreed that both the Employer and the Union shall co-
operate to the fullest extent possible … in the reasonable promotion of
safety and health of all employees.
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[22] These are weighty, joint obligations agreed to in the collective agreements
between the Ontario Public Service Employees Union (the Union), and the Crown
in Right of Ontario Represented by Management Board of Cabinet (the
Employer). I have found that the Employer breached these provisions. The Union
in its reply submissions relied on paragraph 84 of my Decision in that regard,
which reads as follows:
[84] As set out above, mediation was first raised with the Institution on
July 31, 2014 as an option to settle the differences arising from the DT
Course [Defensive Tactics Course] of June 3, 2014. It took the better
part of two years to actualize that request. I agree with the submission
of the Union that the Institution’s management failed to “connect the
dots” of the numerous ORs, which clearly arose out of the issues
raised from the DT Course on June 3, 2014. Management at the
institution turned a blind eye to the bifurcation and turmoil in the
institution, which resulted from those issues. The central fact that
fueled this turmoil was that the CT [co-trainer] produced a black dildo
named “Leon” at the DT Course. There can be no doubt as to the Fact
Finder/Investigator’s conclusion that that incident was discrimination
on the basis of sex. She found that it was discrimination on the basis
of sex on the strength of one witness who “was offended by the
presence of the dildo and was uncomfortable that the dildo was
shown. A dildo is commonly recognized as a sexual item and, similar
to pornography, it is inappropriate to have such an item in the
workplace.” She said that there was “no evidence to support that the
dildo being black held racial connotations”, that latter finding seems to
be because none of the witnesses interviewed made that connection. I
disagree with that finding. I am not bound by the findings of the Fact
Finder/Investigator. I find that a white man producing a black dildo in
the presence of a racialized woman at a training course in a Women’s
Correctional Institution is discrimination on the basis of sex and race
or colour. The colour of the dildo is a material fact, which evidences
discrimination on the basis of race or colour as well as sex.
(emphasis added)
As set out in my reasons, the grievor was a co-trainer at the course; she is a
black woman.
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[23] Part of the Employer’s submissions in Monk are set out at paragraphs 16 and 17
as follows:
[16] The employer submits that this Board’s remedial jurisdiction
under Article 18.1/9.1 is limited to the awarding of declarations and
directions. This is in part because the article is essentially an
incorporation of the employer’s obligation under the Occupational
Health and Safety Act to “take every precaution reasonable for the
protection of a worker.” Since that statute that makes no provision
for the awarding of damages for its breach and the parties have
not expressly provided for the awarding of damages in Article
18.1/9.1, the employer submits that this Board has no power to
award such damages.
(emphasis added)
[17] The employer says that by virtue of the WCA/WSIA, and
particularly section 16 of the WCA and subsection 26(2) of the WSIA,
this Board has no jurisdiction to consider claims and allegations that
pertain to injuries that are compensable under that legislation and,
therefore, cannot award any compensation in respect of a
compensable injury that results from breach of Article 18.1/9.1. It
also argues that if an employee grievance alleges that a breach of
Article 18.1/9.1 has resulted in an injury, and that injury was or could
have been the subject of a claim for benefits under the WCA/WSIA,
then this Board also cannot grant the injured employee a declaration
that the article was breached or directions as to the steps that the
employer must take thereafter to make provision for the future safety
and health of the injured employee, or any other remedy.
[24] In essence, the Employer’s submission in Monk was, in part, that the Board could
not award damages for a breach of article 18.1/9.1 because the Occupational
Health and Safety Act in a similar provision does not provide for damages and
neither does the collective agreement language. That is, only a declaration
and/or directions may be awarded. As set out above, the Court of Appeal’s
Endorsement is much narrower than that. Indeed, Vice Chair Gray’s conclusion,
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set out in paragraph 94, is that narrow as well. Further, his distillation of the
Board’s jurisdiction led him to conclude, after a very thorough analysis, that the
Board is not limited to the remedies of declarations and directions; in his view, at
paragraph 83, that jurisdiction includes the award of damages as a remedy:
[83] The Board has previously concluded that it is not limited to
granting declaratory or directory remedies for breaches of Article
18.1/9.1. Subject to the impact that the WCA/WSIA may have on it,
the Board has consistently said that it has jurisdiction to award
damages for a breach of Article 18.1/9.1 in an appropriate case. [fn.
58] In my view, that conclusion is correct. Express collective
agreement language is not needed to support that jurisdiction.
As the Courts confirmed in Polymer, [fn. 59] an arbitrator’s
jurisdiction to award damages for breach of a provision of the
collective agreement flows from the statutory [fn. 60] and, thence,
collective agreement requirement that differences between the
parties arising from the interpretation, application, administration or
alleged violation of the agreement be settled by arbitration.
(Emphasis added)
[25] Vice-Chair Gray relied on the following authorities and provided the following
comments for the footnotes in paragraph 83:
Footnote 58 - In addition to the decisions referred to earlier, see
OPSEU (Gonneau) and Ministry of the Attorney-General, GSB File
No. 227/81 (Teplitsky), and OPSEU (Kelly) and Ministry of
Correctional Services, GSB File No. 371/84 (Saltman), where
compendation [sic] was awarded for the damage to employees’
personal property that resulted from the employer’s failure to make
reasonable provisions for the employees’ safety and health, and
OPSEU (McLean, More & Union) and Ministry of Community &
Social Services, GSB File No. 1134/88 etc., where employees put at
risk by the release of their personal information were awarded
compensation for costs incurred in mitigating the risk.
Footnote 59 - Polymer Corporation v. Oil, Chemical and Atomic
Workers International Union, Local 16-14 (1962), 26 D.L.R. (2d) 609
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(Ont. H.C.J.), affd 28 D.L.R. (2d) 81 (C.A.), affd [1962] S.C.R. 338
sub nom. Imbleau v. Laskin.]
Footnote 60 - Subsection 7(3), Crown Employees Collective
Bargaining Act, 1993, S. O. 1993, c.35; subsection 19(1), Crown
Employees Collective Bargaining Act, R.S.O. 1990, c. 50. 2010
CanLII 28621 (ON GSB.
[26] Vice-Chair Gray also commented, in apparent response to the Employer's partial
submission set out above, that the health and safety provision of article 9.1,
which mirrors the OHSA, need not provide for damages before an arbitrator may
award them, by virtue of Polymer, as well. He said the following at paragraph 84:
84 The fact that the opening words of Article 18.1/9.1 seem similar
to an obligation in the Occupational Health and Safety Act, a statute
that provides for directory but not compensatory remedies, does not
affect the applicability of Polymer in this regard. I do not need to
decide here whether in the absence of an express employer
obligation to make reasonable provisions for the safety and health of
employees, an arbitrator could award damages for breach of the
Occupational Health and Safety Act on the basis that subsection
48(12)(j) of the LRA and the decision in Parry Sound warrant treating
it as though incorporated into the collective agreement.
[27] Polymer is a foundational case in labour relations which these parties must have
had knowledge of when they negotiated the provisions of the collective
agreement at issue here.
[28] The caselaw relied upon includes consideration of whether compensation for
mental distress is exclusively the purview of the WSIB. As discussed in Monk,
such compensation was unavailable there until the WSIA was amended. In
Rosati, supra, Vice-Chair Anderson considered the relevant history of the
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legislation. Although that case is short on factual detail, the legislative history is
helpful. Up until January 1, 2018, the WSIA provided that mental distress
damages were not compensable under the WSIA, those provisions, being
section 13, were held to be unconstitutional in decisions of the Workers Safety
and Insurance Board. Section 13 was amended effective January 1, 2018, and
those portions of section 13 are set out by Vice-Chair Anderson at his paragraph
4 as follows:
(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.
(4.1) The worker is entitled to benefits under the insurance plan as if
the mental stress were a personal injury by accident.
(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.
[29] Accordingly, disabilities caused by mental stress are compensable under section
13(4) unless they are the type of employer actions described in section 13(5).
Here the parties did not amplify what employer actions would or would not fall
under s.13(5). For the purposes of the matters before me, it does not really
matter whether it falls within s.13(5) or not. I am not required to consider whether
or not the treatment of the grievor would be compensable under the WSIA,
because no claim for such compensation is before me. Here the Union seeks
general damages for breaches of the collective agreement and the Code. Its
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pleading is for damages that flow from the Employer's failure to maintain a culture
in the workplace that did not contravene the obligations it agreed to with the
Union in articles 3 and 9 of the collective agreement and that were contrary to its
obligations under the Code. Those breaches caused the grievor harm, a harm
that cannot be compensated for by the WSIB. In my view, the substance of the
claims before me is very different than what might be claimed at the WSIB.
[30] In Joe Singer Shoes Limited, supra, the Human Rights Tribunal of Ontario
reviewed the basis upon which it determines the quantum of damages for human
rights violations at paragraphs 163, as follows:
[163] The Tribunal can award monetary compensation pursuant to
section 45.2(1)1. of the Code as follows:
45.2(1) On an application under section 34, the Tribunal
may make one or more of the following orders if the
Tribunal determines that a party to the application has
infringed a right under Part I of another party to the
application:
1. An order directing the party who infringed the right to pay
monetary compensation to the party whose right was
infringed for loss arising out of the infringement, including
compensation for injury to dignity, feelings and self-respect.
[164] The guiding principles governing an award of compensation for
injury to dignity, feelings and self-respect were set out in Arunachalam v.
Best Buy Canada, 2010 HRTO 1880. The Tribunal stated that in
evaluating the appropriate damages for injury to dignity, feelings and self-
respect, the Tribunal should consider both the objective seriousness of the
conduct and the effect on the particular applicant who experienced
discrimination: see, in particular, Seguin v. Great Blue Heron Charity
Casino, 2009 HRTO 940 at para. 16.
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[165] Damages will be generally at the high end of the relevant range
when the applicant has experienced particular emotional difficulties as a
result of the events, and when his or her particular circumstances make
the effects particularly serious. The 2018 HRTO 107 (CanLII) The Tribunal
discussed some of the relevant considerations in Sanford v. Koop, 2005
HRTO 53 at paras. 34-38 which include: See also: ADGA Group
Consultants Inc. v. Lane, 2008 CanLII 39605,
Humiliation and hurt feelings experienced by the complainant
A complainant’s loss of self-respect, dignity, self-esteem and
confidence
The experience of victimization
Vulnerability of the complainant
The seriousness, frequency and duration of the offensive
treatment.
See also ADGA Group Consultants Inc. v. Lane, 2008 CanLII
39605.
[166] In assessing the monetary remedy for injury to dignity, feelings and
self-respect, I have also kept in mind that the Tribunal’s remedial powers
are not meant to be punitive. See McCreary v. 407994 Ontario, 2010
HRTO 2369.
[31] The decision in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, referred to
in paragraph 164 of Joe Singer Shoes describes the considerations in assessing
damages under the Code beginning at paragraph 44 as follows:
Damages For Injury to Dignity, Feelings and Self-Respect
[44] The approach to awards for damages for the intrinsic harm of
discrimination has evolved in Code jurisprudence. Prior to the significant
amendments that took effect in June 2008, the Code established a limit of
$10,000 on damages for "mental anguish" which required a finding of
wilfulness or recklessness on the part of the respondent (see s. 41(1)(b) of
the Code as it read prior to June 30, 2008). Tribunal decisions, however,
routinely awarded greater damages for intangible losses, awarding
separate amounts for mental anguish as a result of findings of
discrimination on different grounds and by different respondents. After the
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Divisional Court's decision in Ontario (Human Rights Comm.) v. Shelter
Corporation, 2001 CanLII 28414 (ON SCDC) [2001] O.J. No. 297 (QL) [39
C.H.R.R. D/111] confirmed that this was permitted under the Code,
amounts were awarded for "general damages", which were considered as
separate from amounts awarded for mental anguish.
[45] The amendments to the damages provisions in the Code remove the
need for the Tribunal to divide damages awards into amounts for mental
anguish and for other intangible losses. They require the Tribunal to make
a general evaluation of the circumstances of the Code violation and its
effects to determine the appropriate monetary compensation for injury to
dignity, feelings and self-respect.
[46] Monetary compensation for injury to dignity, feelings and self-respect
recognizes that the injury to a person who experiences discrimination is
more than just quantifiable financial losses, such as lost wages. The harm,
for example, of being discriminatorily denied a service, an employment
opportunity, or housing is not just the lost service, job or home but the
harm of being treated with less dignity, as less worthy of concern and
respect because of personal characteristics, and the consequent
psychological effects. As noted by the Supreme Court of Canada in
considering damages for breaches of the Canadian Charter of Rights of
and Freedoms in Vancouver (City) v. Ward, 2020 SCC 27 (CanLII) at §
27:
. . . Compensation focuses on the claimant's personal loss:
physical, psychological and pecuniary. To these types of loss
must be added harm to the claimant's intangible interests. In
the public law damages context, courts have variously
recognized this harm as distress, humiliation,
embarrassment, and anxiety: Dunlea; Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971); Taunoa v. Attorney-General, [2007] NZSC 70, [2008]
1 N.Z.L.R. 429. Often the harm to intangible interests
effected by a breach of rights will merge with psychological
harm. But a resilient claimant whose intangible interests are
harmed should not be precluded from recovering damages
simply because she cannot prove a substantial psychological
injury.
[47] The principle that intangible losses are compensated with monetary
awards is not unique to statutory human rights law. For example,
negligence law provides for damages for pain and suffering, "fixed at a
fairly modest conventional rate, subject to variation for the degree of
suffering in a particular case": Ward, supra, at § 50; Andrews v. Grand &
Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229. In the law of
defamation, damages take into account injury to the plaintiff's feelings in
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light of the nature of the conduct of the defendant, see McCarey v.
Associated Newspapers Ltd. (No. 2),[1965] 2 Q.B. 86 at pp. 104 - 05
(C.A.), cited with approval in Wallace v. United Grain Growers Ltd., 1997
CanLII 332 (SCC), [1997] 3 S.C.R. 701 at § 105.
[48] While principles from other areas of law may be useful analogies, the
Tribunal's approach to the exercise of its remedial discretion must be
centered in the values of and statutory language in the Code. Code
damages are meant to compensate, not punish, and Code violations,
unlike some other areas of law, arise in a variety of very different social
and legal contexts.
[49] Damages for Code violations, as in other areas of law, must be fair to
both the applicant and respondent(s), given the violations of the Code
found: see Ward, supra, at § 53. Damages under the Code must not be so
low as to trivialize the social importance of the Code by effectively creating
a licence fee to discriminate (see Lane, supra at § 152). At the same time,
Code damages for intangible losses should not be "unduly high": see
Ward, supra,at § 54, referring to the approach of courts in other
jurisdictions to damages for violations of constitutional rights. The Tribunal
should be attentive to the possibility of ongoing inflation of damage awards
for non-pecuniary losses that was recognized in the tort context in
Andrews, supra, in the 1970s. I do not agree with the applicant that an
assumption that damage awards are "increasing" should affect the
determination of awards.
[50] In a system in which many decisions on the merits are made each
year, there is a particular importance that damage awards for intangible
losses be consistent and principled. As the Supreme Court stated
in Andrews, supra, at p. 263, in relation to the assessment of damages for
intangible losses in negligence law:
. . . [T]here is a great need in this area for assessability,
uniformity and predictability. In my opinion, this does not
mean that the courts should not have regard to the individual
situation of the victim. On the contrary, they must do so to
determine what has been lost. For example, the loss of a
finger would be a greater loss of amenities for an amateur
pianist than for a person not engaged in such an activity.
Greater compensation would be required to provide things
and activities which would function to make up for this loss.
But there should be guidelines for the translation into
monetary terms of what has been lost. There must be an
exchange rate, albeit conventional.
[51] Cases with equivalent facts should lead to an equivalent range of
compensation, recognizing, of course, that each set of circumstances is
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unique. Uniform principles must be applied to determine which types of
cases are more or less serious. Of course there will always be an element
of subjective evaluation in translating circumstances to dollars, but the
Tribunal has a responsibility to the community and parties appearing
before it to ensure that the range of damages based on given facts is
predictable and principled.
[52] I turn now to the relevant factors in determining the damages in a
particular case. The Tribunal's jurisprudence over the two years since the
new damages provision took effect has primarily applied two criteria in
making the global evaluation of the appropriate damages for injury to
dignity, feelings and self-respect: the objective seriousness of the conduct
and the effect on the particular applicant who experienced discrimination:
see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO
940 (CanLII) [reported 69 C.H.R.R. D/325] at § 16.
[53] The first criterion recognizes that injury to dignity, feelings, and self-
respect is generally more serious depending, objectively, upon what
occurred. For example, dismissal from employment for discriminatory
reasons usually affects dignity more than a comment made on one
occasion. Losing long-term employment because of discrimination is
typically more harmful than losing a new job. The more prolonged, hurtful,
and serious harassing comments are, the greater the injury to dignity,
feelings and self-respect.
[54] The second criterion recognizes the applicant's particular experience
in response to the discrimination. Damages will be generally at the high
end of the relevant range when the applicant has experienced particular
emotional difficulties as a result of the event, and when his or her
particular circumstances make the effects particularly serious. Some of the
relevant considerations in relation to this factor are discussed in Sanford v.
Koop, 2005 HRTO 53 (CanLII) [reported 55 C.H.R.R. D/102] at § 34-38.
[55] These principles are not intended to comment on how the Tribunal
would deal with a case where medical evidence shows an extreme degree
of suffering in comparison to the nature of the event, a situation which I
leave for another day.
[32] Accordingly, general damages may be awarded for the contravention of the
complainant's Human Rights. This is a jurisdiction unknown, and unknowable, to
the WSIB. These are the heads of damages pleaded for in this matter.
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[33] Finally, the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2
S.C.R. 929, 125 D.L.R. (4th) 583, has given clear direction that a grievor has no
recourse to the courts for matters that arise from a collective agreement either
directly or inferentially; those issues are to be determined at arbitration. Further,
where there is a right under a collective agreement there must be a remedy for a
breach of that right. In my view, articles 3 and 9.1 are substantive provisions of
the collective agreement, the breaches of which sound in damages; I found on
the merits that the employer was in breach of those articles.
[34] These matters proceeded on the merits by way of written will-say statements,
with the right of opposing counsel to cross-examine the witnesses on those
statements. The grievor's will-say statement, which was unshaken in cross-
examination, included her description of the impact on her at paragraphs 84
through 88, which read as follows:
84. I have been made the victim of bureaucratic bullying. [Co-Trainer]
and his associates continuously file unfounded complaints against me to
management. The investigations take a toll on me and leave me feeling
unsupported in the workplace. Management has done nothing to break
this pattern.
85. I did not realize how negatively I had been affected by all of these
events in the workplace until my children told me that I had become
withdrawn and was “not fun anymore.” I did not want to bring the toxicity
from work home with me, and it broke my heart to hear my children tell me
that I had. We are now participating in family counselling.
86. I have been dealing with anxiety and depression that has been
exacerbated by these incidents and the lack of employer response. I take
medication for anxiety and depression. I went off work on stress leave in
January 2017, as a result of the stress and anxiety caused by the toxic
workplace. My doctor cleared me to return to work in the spring of 2017.
One of the main triggers for my recent episode of acute anxiety and
depression was my recently seeing [Co-Trainer] leading a tour of the
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institution, and realizing that I would not be permitted to do so because of
all the events described in my will-say statement. A copy of medical notes
is marked as Tab “FF” of my will-say statement.
87. Working in corrections, it is important to have good rapport with your
fellow Corrections Officers. This is not just a matter of creating a positive
work environment, but a matter of safety. I fear that my colleagues do not
have my back when dealing with inmates, and I do not know who I can
trust.
88. More importantly, I do not feel management has taken steps to
adequately protect me in the workplace. Superintendent Gulbinski and
others have alternately sided with Mr. Andrews’ faction in the institution, or
have ignored the problem altogether. As a result, I have suffered ever
since I reported the June 3, 2014 incident, and I no longer feel safe in the
workplace.
[35] Unlike the situation in Tardiel, supra, described at paragraph 117 of that decision,
the Employer here has not conceded liability; I have found it to be liable. Vice-
Chair Albertyn formulated the purpose of damages at paragraph 134. I agree
with that formulation, which reads as follows:
134. The Grievor is entitled to compensatory damages for the
Employer’s contribution to the harm done to him, as described. The
purpose is to meaningfully vindicate the rights of the Grievor that were
breached. The damages must be sufficient also to deter the Employer and
others from future negligence, and to denounce the past negligence.
However, punitive damages are not justified because the general
damages to which the Grievor is entitled are sufficient to deter the
recurrence of the wrongful action by the Employer.
[36] The grievor is entitled to general damages because of the Employers' breaches
of the collective agreement, the Code and OHSA. I have considered whether I
should quantify the damages for each breach. In my view, in this case, the
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appropriate approach is that taken by Vice-Chair Leighton in Ranger, supra. I
also agree with the Union's characterization of the harm suffered by the grievor
here set out in its written submission at paragraphs 10, 11, 12 and 13:
10. . . .the employer in the instant case chose to look the other way
notwithstanding that the relevant managers knew, or should have known,
the significant, intensifying conflict in the workplace and the bullying the
grievor was being subjected to. Vice-Chair Harris found that the employer
failed in its response to the grievor when it turned a blind eye to the
racialized aspect of the sex toy situation, when it allowed the workplace to
descend into further turmoil by ignoring offers from the grievor and her co-
worker to mediate the matter, and when it dismissed the ORs that were
filed against the grievor as frivolous. [Reasons ¶84]. The union urges the
Board to take the employer’s lackluster response to the events at issue in
the grievances into account when determining the quantum of damages.
11. . . . Similar to the case at hand, in Ranger, the employer knew
about the poisoned workplace yet did nothing to address it. [Ranger ¶49]
The Board held that awarding a monetary amount for every incident that
the grievor was forced to endure in the workplace would be an “Herculean
task”, so instead a global award was fashioned. [Ranger ¶48]
12. The union urges the Board to do the same in the present case. The
grievor faced over a dozen complaints and ORs filed against her, and
countless more accusations and instances of bullying that took place in
the workplace over a period of nearly two years. The grievor was forced to
endure ongoing formal and informal attacks from her colleagues, all while
the employer knew of the conflict and chose to ignore it. The appropriate
remedy should reflect the cumulative harm that results from such turmoil
and abdication of responsibility by the employer.
13. The union also submits that the passage of time since Charlton and
Ranger, and the development of case law before the HRTO on related
matters, should be accounted for when one looks to Charlton and Ranger
as guides to remedial monetary awards. Charlton was decided in 2007
and Ranger in 2013. The passage of some 13 years since Charlton, and
the employer Ministry’s apparent failure to adequately address its
shortcomings in respect of workplace discrimination during this period,
underscores the need for a higher damages award in the present case.
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[37] The Divisional Court in Shelter Corp has upheld the awarding of general
damages for the type of losses that occurred here:
[43] In my view, a Board of Inquiry is entitled to award non-pecuniary
intangible damages arising out of the infringement of the Code. It is an
award to compensate for the intrinsic value of the infringement of the
complainants’ rights under the Code; it is compensation for the loss of the
right to be free from discrimination and the experience of victimization.
There is no ceiling on the amount of general damages.
[38] Having regard to the factors set out in the jurisprudence referenced above, and
considering both the objective seriousness of the conduct and its effect on the
grievor, I find that general damages of $35,000 is appropriate. The Union
submitted that the quantum of damages should be at the highest level. However,
the behaviours to which the complainants in Joe Singer Shoes and Presteve
were subjected, and which drew such damages, were particularly egregious. As
serious as the conduct was here, objectively the conduct that occurred was not
as serious as in those cases. The quantum of damages in those cases, and the
authorities cited therein, relate generally to direct, illegal, action of an employer
against the complainant. Here, what was largely involved was the systemic
failure of this Employer to maintain a civil, respectful and safe workplace, and its
failure to properly investigate the negation of such, that led directly to the
discrimination, harassment and bullying to which the grievor was subjected.
There were direct actions against her, including, but not limited to, OM Cayton's
behaviour and that of Greg Ireland, the Provincial Co-ordinator of the Defensive
Tactics Programs, who removed her from a class for which she was properly
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registered, and in attendance with her Superintendent's approval. However, I do
not agree that the quantum of damages should exceed the level awarded in the
cases relied upon nor should it be at the same level. I have considered the
quantum of damages in the decisions referred to as well as the passage of time
since those decisions came down.
[39] The grievor in this matter testified about the serious, negative impact of her
experiences on her and on her children because of the Employer's failure to
comply with its collective agreement and Code obligations. The purpose here is
not to punish the Employer for its collective agreement and statutory breaches,
but, rather, to provide a monetary remedy to the grievor that seeks to restore to
her, as much as may be possible in these circumstances, what she has lost
because of the disregard of her rights.
Dated at Toronto, Ontario this 23rd day of February 2022.
“Daniel A. Harris”
______________________
Daniel A. Harris, Arbitrator