HomeMy WebLinkAboutViteritti 22-05-30IN THE MATTER OF A GRIEVANCE under the Labour Relations Act, 1995 and pursuant to a collective agreement BETWEEN: PEEL DISTRICT SCHOOL BOARD (the “Employer”) -AND- OPSEU, LOCAL 2100 (the “Union”) Samantha Viteritti Sick Leave Grievance No. 2020-2100-00006 Before: Gail Misra, Arbitrator Appearing for the Employer: Erin Porter, Counsel Andrew Gould, Counsel Masuma Khangura, Executive Officer, Partnerships & Equity Nuzhat Virani, Employee & Labour Relations Partner Appearing for the Union: Allison Vanek, Grievance Officer Melody Hurtubise, Local President Samantha Viteritti, Grievor Hearings held by videoconference on January 11 and May 13, 2022 Decision issued: May 30, 2022
2 PRELIMINARY DECISION I. I have been appointed pursuant to the collective agreement between the parties to hear a grievance filed by the Union on December 14, 2020, on behalf of Samantha Viteritti. The grievance claims that the Employer (or the “Board”) violated various provisions of the collective agreement and the Ontario Human Rights Code (the “Code”) when it failed to provide Ms. Viteritti with sick leave pay and benefits, and failed to provide her with appropriate accommodation. By way of remedy the grievor seeks compensation to make her whole, reimbursement for wages and credits from November 25, 2020 on, and damages for alleged human rights violations. 2. The Employer made a preliminary motion that the grievance is inarbitrable on the basis that the issue raised by the grievance is within the jurisdiction of the Workplace Safety and Insurance Board (“WSIB”), was already decided by the WSIB, and the grievance is a collateral attack on that decision, which is prevented by issue estoppel. 3. This decision addresses the Employer’s preliminary motion. THE FACTS 4. The parties relied on an Agreed Statement of Fact (“ASF”) as follows, along with documents submitted as referred to in the ASF: 1. The Union and the Board are parties to a Collective Agreement, which is comprised of Part A containing the Central Terms and Part B containing the local terms. The Agreement expires on August 31, 2022 [TAB 1]. 2. The relevant sections of Article C10 of Part A of the Collective Agreement state: C10.1(a) Sick Leave Benefit Plan The Sick Leave Benefit Plan will provide sick leave days and short term disability days for reasons of personal illness, personal injury, including personal medical appointments and personal dental emergencies. Appointments shall be scheduled outside of working hours, where possible. C10.1(e) WSIB & LTD (i) An Employee who is receiving benefits under the Workplace Safety and
Insurance Act, or under a LTD plan, is not entitled to benefits under a school board’s sick leave and short term disability plan for the same condition unless the employee is on a graduated return to work program then
3 WSIB/LTD remains the first payor. For clarity, where an employee is receiving partial benefits under WSIB/LTD, they may be entitled to receive benefits under the sick leave plan, subject to the circumstances of the specific situation. During the interim period from the date of the injury/incident or illness to the date of the approval by the WSIB/LTD of the claim, the employee may access sick leave and short term leave and disability coverage. A reconciliation of sick leave deductions made and payments provided, will be undertaken by the school board once the WSIB/LTD has adjudicated and approved the claim. In the event that the WSIB/LTD does not approve the claim, the school board shall deal with the absence consistent with the terms of the sick leave and short term leave and disability plans. 3. Article 22.10 of Part B of the Collective Agreement states: Workplace Accommodation The Employee, the Board and the Union shall collaboratively address the accommodation of employees affected by workplace injury and/or illness in accordance with the Workplace Safety and Insurance Act and the Ontario
Human Rights Code. 4. Article 23.01 of Part B of the Collective Agreement states: Neither the Board, the Union, nor an Employee shall discriminate in their employment against any Employee of the Board on any ground prohibited by the Ontario Human Rights Code or the Ontario Labour Relations Act. 5. At the time of the grievance, the Grievor worked as a full-time educational assistant at Tony Pontes Public School, an elementary school in the Board’s jurisdiction. Her Job Description describes her responsibilities, including, among other things: i) Carrying out lesson plans, classroom routines and/or reinforcing previously taught concepts as directed by the Teacher; ii) Monitoring students as directed by the Teacher/Principal during learning activities, free play, gym, before and after school, recess and lunchtime, field trips, etc. and in any crisis situation; iii) Providing in-class and out-of-class crisis support and behaviour modification to designated student(s); iv) Sharing with the Teacher and the other staff any observed physical, behavioural or intellectual progress, problems and future needs of the student(s) and participating in the daily program planning;
4 v) May assist student with personal care routines such as toileting, dressing, grooming, hygiene etc. to establish good health and life skills; vi) May assist students with approved therapy, including physio, ortho, audio and/or visual where required, as well as feeding and/or mobilization of physically handicapped students (including lifting, positioning, and arrival and departure to and from vehicles at the school); and vii) Administering minor first aid and advising the Principal of any accidents [TAB 2]. 6. The actual duties would vary depending on the student assignment. 7. On October 23, 2020 the grievor was injured at work in the course of her duties [TAB 3]. She suffered injuries to her right arm, shoulder, and back. The Grievor reported her injury right away to her Principal, Sheryl Johnson, and Vice-Principal, Antonella Ferlissi. Later that same day, the Grievor attended the Emergency Room at Brampton Civic Hospital. She applied for WSIB that same day. 8. The Form 8 submitted to WSIB stated that the Grievor was unable to lift, push or pull and had limited use of her right arm [TAB 4]. 9. The grievor remained off work from Friday October 23, 2020 until Wednesday October 28, 2020. On October 28, 2020, Ms. Catherine Danelon, an Abilities Partner with the Board, telephoned and emailed the Grievor to offer her modified duties beginning the next day, October 29, 2020 and continuing until Friday, November 6, 2020 [TAB 5]. Based on the restrictions in the Form 8, the modified accommodations offered were: a. Providing support and guidance to students throughout the day; b. Not required to follow the student/direct the student back to their classroom – colleague will assist the student. 10. On October 28, 2020, Ms. Danelon also submitted the Board’s Form 7 to the WSIB, in support of the Grievor’s allegations that she was injured at work. This Form 7 included the Board’s suggested modified duties that were offered to the Grievor [TAB 6]. The Grievor was provided with a letter outlining the WSIB process [TAB 7]. 11. On October 29, 2020, the Grievor emailed Ms. Danelon indicating that she would not accept the offer of modified duties [TAB 8]. She indicated that she was waiting to see her physiotherapist and her doctor before accepting any modified work.
5 12. On October 29, 2020, the WSIB informed the Grievor that she would receive health care benefits for her claim [TAB 9]. 13. The Grievor submitted a Functional Abilities Form (“FAF”) on November 2, 2020 stating that she had been put off of work and was unable to use her right arm [TAB 10]. 14. On November 6, 2020, a representative of the WSIB issued its decision on the Grievor’s claim for Loss of Earnings (“LOE”) [TAB 11]. The WSIB allowed LOE from October 26, 2020 to October 29, 2020. Ongoing entitlement to LOE beyond October 29, 2020 was denied because, in the view of the WSIB, the Board had offered suitable modified duties and there was no objective medical rationale on file that supported that she was unfit to perform the modified work offered. 15. The Grievor submitted an Intent to Object form to the WSIB stating that she wished to appeal the decision on November 11, 2020 [TAB 12]. 16. On November 11, 2020 the Grievor also submitted an updated FAF from her family physician, Dr. Patrick O’Neill, to both the WSIB and the Board’s Abilities department, which advised that the Grievor was unable to return to work for another 3-4 weeks [TAB 13]. 17. On November 24, 2020, Ms. Danelon informed the Grievor that it had become aware of the WSIB’s decision letter denying LOE beyond October 29, 2020 [TAB 14]. The Board also informed the Grievor that because she has been on a WSIB adjudicated leave, she was not eligible to access further sick leave credits starting November 25, 2020. The Board asked if there was a non-occupational reason that was keeping the Grievor off of work. 18. The Board granted the Grievor access to paid sick leave under the Collective Agreement from October 23 to November 24, 2020 while she was awaiting a decision from the WSIB for loss of earnings and to recognize the Board’s delay in reaching out to the Grievor to confirm her return to work. 19. An updated FAF was submitted on November 24, 2020 [TAB 15]. It stated that the Grievor was unable to return to work with the restrictions being that she could not lift more than 5 kgs. with her right arm or complete work above the shoulder on the right side. 20. On November 27, 2020, Ms. Nuzhat Virani informed the Grievor that she was expected to have returned to work on November 25, 2020 and that as a result of her failure to do so she would be placed on unapproved leave. The grievor informed Ms. Danelon that she was directed by the Union to follow her doctor’s orders and not return to work [TAB 16].
6 21. On December 8, 2020 the Grievor received an email from the Ontario Teacher’s Insurance Plan (OTIP) advising her that her coverage had been terminated as of November 25, 2020 [TAB 17]. 22. On December 9, 2020, the Board and the grievor participated in a Return to Work meeting where the Grievor was presented with the same offer of accommodation. After the meeting, the Grievor informed that Board that she accepted the modified duties presented and would be returning to work [TAB 18] and [TAB 19]. 23. On December 10, 2020, the grievor returned to work on modified duties. 24. On December 14, 2020 the Grievor filed Grievance #2020-2100-0006 [TAB 20]. As a remedy, the Grievor is seeking: a. 90% of her regular daily pay for the 11-day period from November 25 to December 9, 2020 (inclusive); totalling $2,070.04; and b. $5,000 in human rights damages for pain and suffering and additional stress caused by the Board’s actions. 25. An updated FAF was submitted on December 16, 2020 [TAB 21]. 26. On December 24, 2020, the WSIB stated that there was no new information that would cause it to reconsider the decision and the original decision regarding LOE was upheld [TAB 22]. 27. On January 4, 2021, the Grievor was able to have her OTIP benefits reinstated, effective as of December 10, 2020. [TAB 23 and TAB 24]. 28. On January 8, 2021 the Grievor returned to full duties, as per the December 9, 2020 RTW Agreement. 29. A Step 2 meeting was held on January 8, 2021 and the Board denied the grievance on January 22, 2020 [TAB 25]. 30. On January 20, 2021 the parties received a fax from the WSIB with a letter dated January 14, 2021, indicating that the Grievor had reached maximum medical recovery with no evidence of ongoing impairment [TAB 26]. 31. Medical Leave of Absence (Paid or Unpaid) – Human Resources Support Services Procedure 44 provides guidelines for access to sick leave benefits [TAB 27].
7 THE EMPLOYER’S MOTION 5. The starting point, according to the Board, is the undisputed fact that the grievor suffered a workplace injury on October 23, 2020, which is covered by the Workplace
Safety and Insurance Act, 1997 (the “WSIA”). Following her injury, the grievor had attended at the Brampton Civic Hospital Emergency room, received medical treatment, and a doctor there completed a WSIB Form 8 indicating her injury, her limitations, and that she needed to be off work for some time. The Employer offered her modified work within her medical limitations on October 28, 2020, advised her that the WSIB would review the offer against her restrictions, and that if the offer was considered suitable, the WSIB may not pay her Loss of Earnings (“LOE”) benefits. Thus, according to the Board, the grievor had been forewarned that a refusal to accept appropriate accommodated work could impact her entitlement to WSIB benefits. The grievor refused the offer on October 29, 2020, stating that she was waiting to see her physiotherapist and doctor before accepting any modified work. 6. While the grievor was waiting for the WSIB’s decision on her claim, the Employer maintains that she was paid sick leave benefits in accordance with the terms of the collective agreement. On November 2, 2020 the grievor provided the Board and the WSIB with a Functional Abilities Form (“FAF”) indicating that she had been put off work and could not use her right arm. On November 6, 2020 the WSIB issued its decision allowing the grievor’s LOE claim for October 26 to 29, 2020, but denying the claim after that date as it found that the Board had offered Ms. Viteritti suitable modified duties, and there was no objective medical rationale to support that she was unfit to perform the modified work offered. The Employer notes that since it did not become aware of the WSIB’s decision until November 24, 2020, it only then advised the grievor that she was no longer eligible to access further sick leave credits effective November 25, 2020. It asked her whether she had any non-occupational reason for remaining off work, but no such reason was ever provided. 7. The Employer argues that since the only injury that the grievor relied upon for her inability to accept the offer of modified work was the workplace injury, the only relevant restrictions were those indicated by the Emergency Room doctor on the original Form 8 that he completed and submitted to the WSIB, and those from the FAFs that the grievor submitted thereafter on November 2, November 11 and November 24, 2020. The Board notes further that the grievor’s own physician had indicated on the November 24, 2020 FAF that while she could not return to work, her restrictions were that she could not lift over 5 kg. and could not lift above her right shoulder. Those restrictions remained essentially the same on the grievor’s next FAF (with the addition of no bending or twisting), dated December 16, 2020, issued after she had returned to work on December 10, 2020. The Employer further notes that in order to return to work, on December 9, 2020 the grievor accepted the very same modified work that had first been offered to her on October 28, 2020, which had been within both her original and subsequent restrictions.
8 8. Based on the facts of this case the Board argues that an arbitrator does not have the jurisdiction to hear a grievance where a grievor is seeking compensation for an injury that is compensable by the WSIB as it was an injury that arises out of and in the course of employment. In the ASF the parties have agreed that the workplace injury is the only reason for the grievor’s absence from work during the period in question. The remedies sought in the grievance are for Ms. Viteritti’s loss of earnings and benefits during the same period that she is claiming should have been covered by the WSIB, had it continued to support her claim. 9. The Board argues that s. 118 (1) of the WSIA gives the WSIB exclusive jurisdiction “to examine, hear and decide all matters and questions arising under the Act, except where this Act provides otherwise”. At s. 118(2) the Act specifies the areas of exclusive jurisdiction to include whether the person is cooperating in returning to work (subsection 4); whether an employer has fulfilled its obligations under the insurance plan to return the employee to work (subsection 5); and, whether loss of earnings has resulted from an injury (subsection 7). Thus, the Board submits that the facts of this case fall squarely within these provisions of the WSIA, and are within the sole discretion of the WSIB. Since in this case the WSIB determined the grievor’s entitlement to LOE; that the modified work was appropriately offered by the Board; and that the grievor’s failure to accept that modified work disentitled her to further LOE benefits, these are issues that cannot be re-litigated in this arbitration. 10. In this regard, the Board points to s. 26 of the WSIA, which states that there can be no action taken against an employer to obtain benefits that arise out of or for reason of an accident happening to the worker while in the employ of the employer (ss. 26 (1) and (2)). Since the Board is a Schedule 2 employer under the WSIA, pursuant to s. 28(2) of the Act, a worker is not entitled to commence an action against the Schedule 2 employer in respect of the worker’s injury. The Board relies on the arbitral jurisprudence for support that arbitrators have consistently refrained from dealing with matters that are the purview of the WSIB, as “an action” has been found to include a grievance. 11. The Board argues that the grievor’s situation is governed by Art. C10.1 of the collective agreement as it regards the Sick Leave Benefit Plan (the “sick leave Plan”). In this regard, it relies on Art. 10.1(a) which states that the Plan provides sick leave days and short term disability days for reasons of personal illness and personal injury. Where an employee receives benefits under the WSIA, they are not entitled to benefits under the Plan for the same condition, unless the employee is on a graduated return to work plan and the WSIB remains the first payor (Art. 10.1(e)(i)). Thus, according to this collective agreement provision, the Employer asserts the parties have agreed how the WSIB payments and Plan payments should coordinate. They agreed that during the interim period between the date of injury and date of approval by the WSIB, the employee may access sick leave coverage, and that a reconciliation will be done by the Board once the WSIB has adjudicated and approved the claim. They further agreed that in the event that the WSIB does not
9 approve the claim, the Board “shall deal with the absence consistent with the terms of the sick leave” Plan. 12. According to the Board, it is because of the last provision in Art. 10.1(e) that, following the WSIB’s denial of her claim after October 29, 2020, it had to ask the grievor if she had any personal illness or injury that was keeping her off work, as it had to consider such circumstances when deciding whether she qualified for sick leave benefits under the Plan. 13. The Employer argues further that pursuant to the “Medical Leave of Absence (Paid or Unpaid) – Human Resources Support Services Procedure 44”, the Board has guidelines for how sick leave may be accessed. Pursuant to that policy, if a workplace accommodation is agreed to by a third party assessor, and the employee does not accept it, then they are put on an unpaid leave of absence. The Board argues that in this instance the WSIB had approved the accommodated work offer as appropriate to the grievor’s medical restrictions, so the Board found Ms. Viteritti was not entitled to receive paid sick leave under the Plan. 14. Relying on the arbitral and Court of Appeal jurisprudence, the Board argued that arbitrators are precluded from deciding matters that fall within the exclusive jurisdiction of the WSIB because of issue estoppel or collateral attack. The Board states that the only way that an arbitrator could find for the grievor would be to determine that she was entitled to sick leave benefits, and that would require a finding that contradicts the WSIB’s finding that the modified work offered by the Board was suitable. The Board maintains that I cannot do that as I must accept as a fact that the modified work was suitable. It points out that the grievor has the right to appeal the WSIB’s decision, and did in fact exercise her right by filing a disagreement notice through the WSIB. According to the Board, that would be the appropriate avenue for appeal, and it is not appropriate to have one Eligibility Adjudicator saying the modified work offer was appropriate and an adjudicator in another venue saying it was not. It relies on the Supreme Court of Canada decision in Figliola, cited below, for this proposition. 15. In respect of the grievor’s claim of a breach of the Code, for the same reasons as alleged for breaches of the collective agreement, the Employer notes that the Human Rights Tribunal of Ontario (“HRTO”) has consistently dismissed complaints where the main issue is disagreement with the WSIB’s decision regarding the accommodation of a complainant’s disability following a workplace accident. The Board points out that the grievor is claiming damages for a breach of the Code in this proceeding, and as such, it relies on the HRTO jurisprudence that a WSIB case manager’s decision regarding accommodation is a “decision” in another proceeding, which has led the HRTO to dismiss such complaints without hearing. 16. In light of the jurisprudence, and that the sole issue before the arbitrator in this grievance is whether the modified work offered was appropriate in all the circumstances, the Board argues that the arbitrator lacks jurisdiction to hear this
10 matter and potentially come to a different decision from another legislated body, which has an appeal process, and where that process was engaged here. 17. The Employer relied on the following jurisprudence in support of its arguments:
Ontario (Ministry of Community Safety and Correctional Services) v. OPSEU, (referred to as the “Monk arbitral decision”) 2010 CarswellOnt 17779; upheld in Ontario
(Ministry of Community Safety and Correctional Services) v. OPSEU, (referred to as “Monk” in this decision)(Ont. C.A.) 2013 CarswellOnt 7954, 2013 ONCA 406; Unifor,
Local 1996-O and Bell Technical Solutions Inc. (Reidt), Re, 2019 CarswellOnt 6899;
London District Catholic School Board and OECTA (Weilgosh), Re, 2021 CarswellOnt 23; British Columbia (Workers' Compensation Board) v. British Columbia (Human
Rights Tribunal), (Supreme Court of Canada) (referred to as “Figliola”), 2011 CarswellBC 2702, 2011 SCC 52; Ellis v. Ontario (Solicitor General), [2020] O.H.R.T.D. No. 690, 2020 HRTO 748; The Toronto Sun and Unifor, Local 87-M, 2014 CANLII 22359 (ON LA); Maple Leaf Foods Inc. and UFCW, Local 175 (Singh), Re, 2018 CarswellOnt 14777; and, Ottawa-Carleton District School Board and OSSTF, District
25 (Donnelly), Re, 2014 CarswellOnt 8093. UNION RESPONSE SUBMISSIONS 18. The Union argues that this case is about the Board’s failure to provide paid sick leave and proper accommodation to the grievor. Based on the ASF and supporting documents, the Union asserts that it is clear that the grievor refused the modified duties as, due to the COVID-19 restrictions, she had not been able to see either her family doctor or her physiotherapist by October 28, 2020. In any event, the Union asserts that the Emergency Room doctor had said she should be off work for two to four weeks. Furthermore, the Union points out that when the grievor agreed to return to work on December 10, 2020, even at that juncture her doctor had said she should be off work until January 15, 2021. 19. The Union disagrees with the Board that the central question is whether the offer of modified work was suitable. Rather, according to the Union, the question is whether the Employer failed to pay Ms. Viteritti sick pay from November 25, 2020 until her return to work on December 10, 2020, in violation of the collective agreement. That was not a question that the WSIB could have answered: it is one that only an arbitrator can adjudicate, so the grievance is not a collateral attack on the WSIB’s decision. 20. In this regard, the Union relies on the last sentence in Art. 10.1(e) as determinative of the issue as it argues that the parties have agreed on what should occur if the WSIB denies a claim: it must then be dealt with consistent with the Plan. According to the Union, regardless of what the WSIB decided, the grievor was eligible for sick leave and short term disability benefits pursuant to the collective agreement Plan.
11 21. In the Union’s view the WSIB did not have sufficient evidence before it when it found that the grievor could have been appropriately accommodated through the Board’s offer as the grievor had not seen her doctor or physiotherapist by that time. 22. The Union argues that the situation here is distinguishable from the caselaw relied upon by the Board as these parties have bargained an exception regarding what is to occur if the WSIB denies a claim. The Union asserts that the essential character and nature of the grievance claim is factually and functionally related to the collective agreement, and therefore falls squarely in an arbitrator’s jurisdiction. 23. According to the Union, a decision by a WSIB Eligibility Adjudicator is not a judicial proceeding but is an administrative one, without the procedural safeguards of natural justice. As well, since the WSIB and arbitrators have different jurisdiction, the WSIB is not a competent authority to decide on a collective agreement provision, and here the Union is seeking a finding of violation of Art. 10.1. 24. The Union argues in the alternative that pursuant to the Supreme Court of Canada decision in Danyluk, cited below, the arbitrator can exercise judicial discretion where a significant injustice may flow from a finding of res judicata, issue estoppel or collateral attack. Going through the list of factors the Supreme Court had outlined for consideration, the Union states that in this case, the grievor is not trying to get WSIB benefits, but rather paid sick leave; the collective agreement has a provision to address where the WSIB denies a claim; the grievor does have the right to appeal in the WSIB process; however there are no procedural safeguards in the claims adjudicator process, as it is simply an administrative process; the claims adjudicator is not a lawyer; the grievor’s personal vulnerability includes that she had been injured at work, was in pain, and while she had the benefit of the Union’s assistance, it was a new process for her; she had been cut off her benefits and suffered mental distress as a result of the steps she had to take to get her benefits reinstated; and, there is the potential for injustice to the grievor as she has rights under the collective agreement, and a breach of those rights is a serious issue. 25. The Union therefore urges the arbitrator, if the primary argument is not accepted, to exercise discretion to hear this case and dismiss the Board’s preliminary motion. 26. In making its arguments the Union relied on the following jurisprudence:
Canadian Labour Arbitration, 5th Edition § 2:74, Donald J.M. Brown Q.C., David M. Beatty, Adam J. Beatty, Chapter 2. Jurisdiction of the Arbitrator; Danyluk v. Ainsworth
Technologies Inc., (Supreme Court of Canada) 2001 SCC 44; Proboard Ltd. v. C.E.P.,
Local 49-0, 2002 CarswellOnt 5238; Hamilton (City) v. O.N.A., 2008 CarswellOnt 9023; and, Maple Leaf Foods Inc. and UFCW, Local 175 (Singh), Re, 2018 CarswellOnt 14777.
12 EMPLOYER’S REPLY SUBMISSIONS 27. The Board points out that the Union’s characterization of the issue in this case is circular: If the issue is that the grievor should have been paid under the sick leave Plan, then the Board asserts that appropriate modified work was offered, a third party, the WSIB, found that modified work to be appropriate; therefore the grievor was not entitled to sick leave for that reason, and that brings one back to the jurisdiction of the WSIB. The only way for the Union to be successful in this grievance would be for the arbitrator to find that the modified work offer was not appropriate, and that is a decision that has been made by the WSIB. 28. Regarding the Union’s assertion that the WSIB determination was an administrative decision, the Employer asserts that is an argument based on old law. The Board has provided case law which shows that is no longer the view of arbitrators and the HRTO. There are procedural safeguards at the WSIB; its decisions can be appealed; and the WSIB is a well-established and expert tribunal in its area of expertise. 29. In addressing the Union’s argument in the alternative, the Board argues there is no natural justice issue here and no need to exercise discretion to hear this case. The facts in Danyluk, cited above, were distinguishable from what is at issue here. As the Board put it, given the WSIB’s “raison d’etre”, a WSIB Eligibility Adjudicator has the expertise to look at a return to work plan along with medical documentation provided with a claim, and determine whether it is appropriate or not. 30. While the Union claimed that the grievor suffered as a result of being removed from the benefit plan, the Board points out that she was reinstated on the plan effective December 10, 2020, and in any event, there is no evidence in the ASF regarding any mental distress to ground the $5,000 claim for damages. The Board also asserts that losing benefits is the natural consequence of being on an unapproved leave of absence. 31. The Board argues that, contrary to the Union’s view that the WSIB did not have before it all the relevant medical evidence when it determined that the grievor was not entitled to LOE beyond the date that she was offered modified work, by December 24, 2020 when it dismissed the grievor’s appeal, it had before it all the FAFs that the grievor’s doctor had provided, and it still maintained its initial decision. As such, the Employer argues that the motion should be upheld.
WORKPLACE SAFETY AND INSURANCE ACT 32. For the purposes of this arbitration, the relevant provisions of the WSIA are as follows: Purpose
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1. The purpose of this Act is to accomplish the following in a financially responsible and accountable manner: 1. To promote health and safety in workplaces. 2. To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease. 3. To facilitate the re-entry into the labour market of workers and spouses of deceased workers. 4. To provide compensation and other benefits to workers and to the survivors of deceased workers. …
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. 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 dependent 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. … Certain rights of action extinguished 28. ( 1 ) A worker employed by a Schedule 1 employer, the worker's survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker's injury or disease: 1. Any Schedule 1 employer. 2. A director, executive officer or worker employed by any Schedule 1 employer. (2) A worker employed by a Schedule 2 employer and the worker's survivors are not entitled to commence an action against the following persons in respect of the worker's injury or disease: 1. The worker's Schedule 2 employer. 2. A director, executive officer or worker employed by the worker's Schedule 2 employer. … PART V RETURN TO WORK
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Duty to co-operate in return to work 40. (1) The employer of an injured worker shall co-operate in the early and safe return to work of the worker by, (a) contacting the worker as soon as possible after the injury occurs and maintaining communication throughout the period of the worker’s recovery and impairment; (b) attempting to provide suitable employment that is available and consistent with the worker’s functional abilities and that, when possible, restores the worker’s pre-injury earnings; (c) giving the Board such information as the Board may request concerning the worker’s return to work; and (d) doing such other things as may be prescribed. (2) The worker shall co-operate in his or her early and safe return to work by, (a) contacting his or her employer as soon as possible after the injury occurs and maintaining communication throughout the period of the worker’s recovery and impairment; (b) assisting the employer, as may be required or requested, to identify suitable employment that is available and consistent with the worker’s functional abilities and that, when possible, restores his or her pre-injury earnings; (c) giving the Board such information as the Board may request concerning the worker’s return to work; and (d) doing such other things as may be prescribed. … PART XI DECISIONS AND APPEALS Decisions by the Board Jurisdiction 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. (2) Without limiting the generality of subsection (1), the Board has exclusive jurisdiction to determine the following matters: 1. Whether an industry or a part, branch or department of an industry falls within a class or group of industries in Schedule 1 or in Schedule 2 and, if so, which one. 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.
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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. 6. Whether a labour market re-entry plan for a person is to be prepared and implemented. 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. 10. Whether a person is a spouse, child or dependent of an injured worker for the purposes of the insurance plan. 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. ANALYSIS 33. There are two aspects to the grievance before me: one is the claim for payment for the sick leave credits that the grievor alleges should have been paid to her for about 11 days before she returned to work; and the second claim is for damages for the impact on her of the Board’s failure to keep her on the sick leave Plan; its advising the benefits insurer that the grievor was on an unauthorized leave of absence; the consequential loss of benefits until she came back to work; and the difficulty the grievor had in getting her benefits reinstated properly following her return to work. 34. With respect to the first issue, the Board asserts that this grievance represents a collateral attack on the WSIB decision that the Board had offered the grievor an appropriate accommodated position on October 28, 2020, and therefore I should decline to hear the grievance. The Board posits that since the grievor had refused the offer of accommodated work, and therefore had been denied continuing Loss of Earnings benefits from the WSIB beyond October 29, 2020, she is seeking sick leave credits instead in this grievance, as well as lost benefits for the period when she was denied sick leave between November 25 and December 9, 2020. 35. With respect to the second issue of the damages claim, which is largely related to the first, the Board asserts that, based on the language of the WSIA, and the arbitral jurisprudence, the grievor cannot make a claim through the grievance arbitration process for damages relating to circumstances arising out of her WSIB claim. 36. In reaching a decision, I have reviewed the ASF, all the documents filed as part of the ASF, the parties’ submissions, and the jurisprudence presented in support of those submissions. For the reasons that follow, I uphold the Board’s preliminary motion, and find that I am without jurisdiction to hear this grievance. ***
16 37. In addition to the facts outlined in the ASF, based on the ASF and supporting documents, the following are some of the more detailed facts upon which I have relied in addressing the Employer’s preliminary motion. 38. The grievor was a Special Student Assistant at the Board, whose job included providing in-class supports for learning and classroom routines for children with special needs in a public school. As well, her regular duties may include providing in-class and out-of-class crisis support for a designated student, and where assigned, assisting a student with personal care routines, approved therapy, and administering minor first aid. 39. As a result of a workplace accident which involved a student pulling the grievor awkwardly, the grievor injured her right shoulder, arm and back. When seen in the Emergency Department of a hospital on October 23, 2020, the doctor completing the Form 8 report to the WSIB noted the grievor’s restrictions as an inability to lift, push or pull, and an inability to use her upper right arm. The form indicated that the grievor could begin modified duties as of November 9, 2020, and it was recommended that she see a physiotherapist and her own general practitioner. 40. Based on the restrictions listed in the Form 8, on October 28, 2020 the Board offered the grievor workplace accommodations which would only require her to provide support and guidance to students, but would not require her to follow or direct a student back to their classroom; instead, a colleague would assist the student in this manner. The grievor would be able to stretch and change postures and take micro-breaks as needed to accommodate her restrictions. The temporary restrictions would be in place until November 6, 2020, and the grievor was asked to provide updated FAFs if an extension was required, or if she was declining the offer of accommodated work. She was advised that if she declined the offer, and if the WSIB found that the offer was within her restrictions and was suitable, it may not pay her LOE benefits. 41. On October 29, 2020 the grievor advised the Board that she could not accept the accommodated work until she had seen her physiotherapist and family physician. On November 2, 2020 she provided the first WSIB FAF from her physiotherapist, which also indicated that the grievor would be seeing her family doctor on November 3, 2020. The physiotherapist’s FAF indicated that the grievor was unable to use her right arm and was unable to return to work at that time. 42. It would appear that the Board did not receive the November 2nd WSIB FAF, as on November 5, 2020, an Abilities Partner at the Board contacted the grievor again to ask if she had had a chance to connect with her physiotherapist or doctor to have an updated FAF completed, and to discuss the modified duties. By later that morning, the grievor advised that she would not be returning to work for at least the next week.
17 43. By a letter dated November 6, 2020 a WSIB Eligibility Adjudicator advised the grievor that her LOE claim had been approved from October 26 to 29, 2020, but not beyond that date as the Board had offered her “suitable modified duties” as of October 29, 2020, and there was “no objective medical rationale on file that supports that you were unfit to return to work and unfit to perform the suitable modified work that was offered to you on October 28, 2020”. The letter advised the grievor that she had the right to appeal the adjudicator’s decision by May 6, 2021. 44. With the assistance of the Union, which acted as her representative in the matter, the grievor filed an “Intent to Object Form” with the WSIB on November 11, 2020, in which she detailed all her concerns with the Eligibility Adjudicator’s decision. 45. Although the Board had received the WSIB’s November 6th letter regarding the grievor’s LOE entitlement, it did not come to the attention of the Abilities Partner at that time. As such, the Board kept paying the grievor through the sick leave Plan. However, in an email dated November 24, 2020, the Board Abilities Partner finally contacted the grievor to ask her whether, since the WSIB had denied her LOE benefits effective October 29, 2020, and since her absence up to that juncture had been considered related to WSIB approval of her claim, if she was absent for any other medical reasons unrelated to her WSIB leave. If so, the grievor was asked to provide the Employer with a form in that regard for consideration under the sick leave Plan. 46. As the grievor did not provide any other medical reasons for her continued absence, on November 27, 2020 the Employer advised her that since she had failed to return to work on November 25th, she was considered to be on a Leave without Approval, which would impact her next pay. As a result of no longer being in receipt of pay through her sick leave credits, and being on an unapproved leave of absence, effective November 25, 2020 the grievor’s benefits plan advised her she was no longer eligible for benefits. 47. In and around that juncture the grievor’s general practitioner had indicated in a November 24, 2020 FAF that Ms. Viteritti should remain off work until January 15, 2021. Nonetheless, on December 9, 2020 the grievor accepted a return to work plan, and commenced modified work on December 10, 2020. There is no dispute that the work she accepted was the type of work that she had been offered on October 28, 2020. 48. The grievance was filed on December 14, 2020. 49. Although the grievor and/or Union had provided the WSIB with her various FAFs from November and December 2020, by a letter dated December 24, 2020 the WSIB Eligibility Adjudicator advised the grievor that as there was no new information to consider, or that would change the original decision, the November 6, 2020 WSIB decision was being upheld. The grievor was advised that she had until
18 May 6, 2021 to appeal this decision. I have no evidence before me as to whether the grievor filed any further appeals to the WSIB or Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). CLAIMS FOR LOSSES DUE TO WORKPLACE INJURIES THROUGH GRIEVANCE ARBITRATION 50. The Monk arbitral award, which issued in 2010, and the Court of Appeal’s decision upholding that award in 2013, cited above, have set the course for how grievances relating to the impact of workplace disease or injury on workers are to be addressed where such claims had, or could have, been made to the WSIB. 51. The Monk arbitration addressed 235 grievances filed by correctional workers about their exposure to second-hand smoke in their respective workplaces, which they alleged was a breach of the health and safety provisions of their collective agreement. The grievors were seeking, among other remedies, damages for the impact of the employer’s inaction in their workplaces on their health and safety. Some had filed WSIA claims about the impact of second-hand smoke on their health. The employer argued that their grievances were therefore barred by the operation of s. 26(2) of the WSIA, and that an arbitrator was without jurisdiction to hear those grievances. 52. Vice-Chair Gray outlined the history of the workers compensation scheme, and noted that in return for employers’ contributions to the compensation fund, the historical trade-off that gives employees the right to compensation for injuries caused out of and in the course of employment, gave employers protection from liability for compensation for the compensable workplace injuries of their employees (at para. 88). The arbitrator went on to find that the Grievance Settlement Board, which decides grievances for public service employees, was precluded from awarding damages in respect of compensable workplace injuries under the Workers Compensation Act (“WCA”, the precursor to the WSIA) (para. 91). 53. Vice Chair Gray noted that the Workers Compensation Appeals Tribunal (the precursor to the WSIAT) had found that a contract of employment may provide for supplementary benefits to those under the WCA, but that the language conferring such benefits had to be carefully crafted so as not to trench on what is now essentially the same language as found in ss. 16 or 26(2) of the WSIA (paras. 92 and 106). He noted that very clear and careful language is required to accomplish this in a collective agreement context, and that the supplementary entitlement must flow from something other than the injury itself (para. 92). 54. Ultimately, Vice Chair Gray found as follows: 107. This Board cannot award a grievor damages "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" if the alleged accident or disease is or was
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compensable under the WCA or WSIA. … 111. In determining whether this restriction applies to any particular one of the grievances that allege adverse health effects resulted from exposure to second hand smoke, the question is not whether a claim for compensation was made and granted under the pertinent statute in respect of the injury or illness alleged in the grievance. The proper question is whether an injury or illness of the sort alleged by the
grievor would be or would have been compensable under the applicable statute if
proven. If that question has been answered in proceedings under the WCA/WSIA, then
that answer governs. (Emphasis added) 55. The Monk arbitral decision was upheld by the Divisional Court on judicial review, and again at the Ontario Court of Appeal, in its May 29, 2013 decision (Monk, cited above). As such, any arbitral jurisprudence that predates May 2013 is of little assistance to me in reaching a decision in this case if the arbitrator found that a union could essentially relitigate an issue that is squarely in the domain of the WSIB by virtue of the exclusive jurisdiction that the WSIA grants that agency. The decisions in Proboard and the City of Hamilton, cited above, which were decided in 2002 and 2008 respectively, and were relied upon by the Union, are no longer good law. 56. In the 2018 decision in Maple Leaf Foods, cited above, Arbitrator Surdykowski thoroughly addressed a situation somewhat similar to what is before me to the extent that it was a preliminary question about his jurisdiction to conduct a grievance arbitration regarding a grievor who had both a pre-existing medical condition (which is not the situation in this case) and had suffered a workplace injury that had been covered by the WSIB. The union was claiming continuing wages until the grievor turned age 65, and punitive and aggravated damages for breach of the Human Rights Code. In this case the Union is seeking payment for 90% of the grievor’s wages for the days she was not paid by the WSIB, and $5,000 in damages for the detrimental effects of stress and loss of benefits that the Employer’s actions had on her. The Union claims this distinguishes the Maple Leaf Foods case from what is before me, but in my view, while there is a quantum difference, the essentials of the claim are relatively the same: income support for time when the grievor could not work, and damages for how she was treated. 57. Arbitrator Surdykowski addressed the jurisprudence pre-Monk, and summarized the state of the law after the Monk arbitral decision had been upheld at both judicial review and by the Court of Appeal, (decision cited above). Since I agree with his analysis, it is reproduced here as follows: 50. In any event, not only do all of the decisions cited by the Union pre-date the
Monk decisions, they have been overtaken by them, Vice-Chair Gray's analysis in
Monk begins (at paragraph 7) with an accurate description of the theory of workers' compensation legislation:
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[7] Early in the twentieth century, Ontario (and other jurisdictions) enacted legislation to provide for no-fault compensation of workers for workplace injuries, out of a compensation scheme funded by mandatory employer contributions. Such legislation involves what is commonly described as a "historic trade-off."[4] The right of workers to take legal proceedings against their employers to recover compensation for workplace injuries was extinguished and replaced with a right to compensation that did not depend on the employer's being solvent or proven to be "at fault," and was not affected by questions of their own voluntary assumption of risk or contributory negligence. In turn, employers were protected from liability to their employees for workplace injuries, in return for their mandatory contributions to the compensation fund. As is typical in such legislation, the Ontario legislation created an administrative agency with exclusive jurisdiction to administer the fund, assess entitlement to benefits and determine the precise boundaries of the "historic trade-off," removing those questions from consideration by courts. … 52. Vice-Chair Gray concluded that although the WSIA did not necessarily foreclose all possible grievances under the health and safety provisions in a collective agreement (or presumably other legislation, such as the OHSA), it did preclude a collective agreement grievance arbitrator from awarding damages "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" if the alleged accident or disease is or was compensable under the WSIA. He observed (at paragraph 111 of his decision) that "the proper question is whether an injury or illness of the sort alleged by the grievor(s) would be or would have been compensable under the applicable statute if proven". 53. In dismissing the union's application for judicial review of the Monk decision, the unanimous Divisional Court agreed with Vice-Chair Gray's analysis and determination of the jurisdictional issue (paragraph 40-41). The Divisional Court held that Vice-Chair Gray correctly determined that a fault-based claim for a compensable workplace injury was prohibited, but that he had not determined that the parties to a collective agreement could not contract for supplemental no-fault benefits additional to those provided by the WSIA, so long as the collective agreement language was clear in that respect (paragraphs 45-46). On appeal, the unanimous Ontario Court of Appeal held that Vice-Chair Gray's conclusion that a grievance arbitrator could not award collective agreement damages in relation to a WSIA compensable injury was not only reasonable but correct. The Court of Appeal agreed (at paragraph 5) with the Divisional Court that Vice-Chair Gray's decision was "thorough and carefully considered, logical and intelligible, justifiable and transparent". The Court of Appeal went on to write that: "... 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." (Underlined emphasis added.) The Court of Appeal considered the Divisional Court's endorsement of Vice-Chair Gray's comment that clear and careful collective agreement language is required in order to provide a foundation for benefits
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supplementary to the WSIA to be obiter, and declined to comment on it. Obiter it may have been, but Vice-Chair Gray's comment was accurate and the Divisional Court's endorsement is not only useful, it is also (with respect) correct. … 58. There is no cogent reason to exclude the collective agreement right to file a grievance from the s. 26(2) prohibition. Unlike the case with the Ontario Human
Rights Code with respect to which there is an overlapping jurisdiction between collective agreement grievance arbitrators and the Ontario Human Rights Tribunal, there is no overlap between WSIA and collective agreement jurisdiction. A matter is either within the collective agreement jurisdiction of a grievance arbitrator or the jurisdiction of the WSIB/WSIAT. It is one or the other. It cannot be both. The workers' compensation scheme and the collective agreement scheme can and do co-exist - but they do not overlap. The question is not whether the WSIB or the WSIAT have jurisdiction to interpret and apply collective agreements. They do not (except to the extent necessary to determine an issue within their jurisdiction -just as a grievance arbitrator may consider the provisions of the WSIA in order to determine an issue within his jurisdiction). 59. The Monk analysis and the Court of Appeal's instruction that when it comes to questions of jurisdiction it is the substance of the claim that matters, is consistent with the Weber doctrine developed by the Courts. The Weber doctrine posits that a collective agreement grievance arbitrator has exclusive jurisdiction over any claim that is factually and functionally connected to a collective agreement matter, but does not have jurisdiction over a claim that is factually and functionally independent of a collective agreement. The converse is that a grievance arbitrator does not have jurisdiction over a claim that is within the exclusive jurisdiction of another tribunal. 60. When the essential character or nature of a claim is factually and functionally connected to a collective agreement it falls within the exclusive jurisdiction of a grievance arbitrator properly appointed to do so. When the essential character or nature of a claim is factually and functionally connected to a workplace injury it falls within the exclusive jurisdiction of the WSIB and WSIAT. A grievance arbitrator does not have jurisdiction to determine matters within the purview of the WSIA. That is within the exclusive jurisdiction of the WSIB in the first instance and the WSIAT on appeal. Therefore, the question is whether the fundamental nature or essential character of the claim in this case falls within my jurisdiction as grievance arbitrator or the exclusive WSIA jurisdiction of the WSIB/WSIAT. Is the fundamental issue one of collective agreement interpretation or application, or is the fundamental issue one a matter of WSIA workers' compensation? 58. As did Arbitrator Surdykowski in Maple Leaf Foods, cited above, I find that the grievance before me is “essentially and substantially an action for damages arising out of the grievor’s workplace injury” and for her alleged mistreatment by the Board in regards to that issue (para. 62). Ms. Viteritti’s claims have been made by reason of the workplace injury, and I find that they fall within the compensatory functions of the WSIA.
22 59. I agree with the Employer in this case that while these parties have agreed on a sick leave plan, that plan provides a level of income support to workers who have experienced personal injury or illness, not workplace injury or illness (at Art. C10.1). The parties have turned their minds to WSIB cases in Art. 10.1(e) to indicate that an employee who receives benefits under the WSIA is not entitled to benefits under the sick leave Plan for the same condition, unless on a graduated return to work plan, where the WSIB remains the first payor. Only if the WSIB does not approve a worker’s claim may the claim be considered under the sick leave Plan. 60. In this case, the grievor was approved by the WSIB for LOE benefits for her workplace injury. However, she was only entitled to LOE benefits until the Employer offered her a workplace accommodation which the WSIB determined was appropriate to her medical restrictions. Pursuant to the Employer’s Medical Leave of Absence (Paid or Unpaid) – Human Resources Support Services Procedure 44, which the parties agreed was properly before me, the Employer can accept a third party assessment of whether a workplace accommodation is appropriate, and if the employee does not accept that workplace accommodation, they can be put on an unpaid leave of absence. 61. However, even if the Board’s Procedure 44 had not contained this provision, as will become clear below, it would still have been arguable that in the case of a workplace injury, a decision of the WSIB or WSIAT should not be interfered with by a grievance arbitrator, as to do so would constitute a collateral attack on the decisions of that expert body that has legislatively been mandated with exclusive jurisdiction pursuant to s. 118 of the WSIA to “examine, hear and decide all matters arising under this Act”, and whose actions and decisions, pursuant to s. 118 (3), are “final” and “not open to question or review in a court”. 62. Included in the matters that are within the WSIB’s exclusive jurisdiction to determine is whether “a person is co-operating … in returning to work …”(s. 118(2)(4)). 63. On the facts before me, the WSIB found the accommodated work offered by the Board to be appropriate; the grievor refused to do that work until she had seen her own doctor and physiotherapist; the Board kept paying her sick leave pay until November 24, 2020, even though it was not bound to do so; but at that juncture, in accordance with its established policy, it advised her that she would be cut off sick pay effective November 25, 2020; and, the Board asked the grievor whether she had a non-occupational reason for remaining off work. Thus, it recognized that if the grievor had a non-occupational, which is to say a personal reason for her absence, she may still be eligible for sick leave under the Plan. Ms. Viteritti did not provide any non-occupational reason for remaining off work. Thus, in the Board’s view, she could not bring herself into the eligibility requirements of the sick leave Plan, which is payable for personal injury or illness, rather than workplace injury or illness.
23 64. In the 2019 Bell Technical Solutions decision, cited above, Arbitrator Anderson considered a preliminary objection to his jurisdiction to hear a grievance in which an employee had a workplace injury, received WSIB benefits, reinjured himself as a result of a supervisor’s order, and was claiming damages for lost wages and psychological harassment. The arbitrator wrote as follows regarding the bases for excluding the jurisdiction of an arbitrator: 61. … The issue is not the types of damages claimed, but whether the substance of the claim itself is for or by reason of the accident: Monk ON CA at para 5. If so, the claim is precluded and thus any damages which might arise from the claim. This is well explained in OPSEU and Ontario (Ministry of Correctional Services) (Gibbon), Re [2002 CarswellOnt 10148 (Ont. Grievance S.B.)], 2002 CanLII 45808 at p. 13 (reproduced by Arbitrator Gray at para. 61 of Monk): When section 26 is looked at in its entirety, it covers two aspects. The first, section 26(1) prevents any right of action for benefits, other than a right to claim benefits through the WSIB. The second, section 26(2), provides that entitlement to benefits under the WSIB is in lieu of, or instead of, "all rights of action (statutory or otherwise) ...". The benefits are therefore a replacement for all rights of action resulting from "an accident happening to the worker....while in the employment of the employer." Section 26(2) would not be necessary if an employee was only prevented from seeking benefits from other sources. Therefore, reading section 26(2) in conjunction with section 2 of WSIA, which defines an "accident" and the right to benefits, section 26(2) prevents a worker from pursuing any action against the employer for any damages arising from an accident for which benefits were paid. 62. In the result, and subject to the question of primacy of applicable human rights and health and safety legislation, there are two distinct bases on which the jurisdiction of an arbitrator may be excluded by the WSIA. 63. The first basis on which the jurisdiction of an arbitrator may be excluded is if the substance of the claim is "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" if the alleged accident or disease is or was compensable under the WSIA. In such a case, the claim is barred by section 26(2) of the WSIA. The locus of the inquiry is whether the claim is for or by reason of an accident. If so, the worker is limited to the remedies and benefits under the WSIA. The fact that additional damages, remedies or benefits might be available outside of the WSIA does not provide a basis for arbitral jurisdiction. This is a product of the "historic tradeoff" represented by workers' compensation schemes: workers are entitled to defined, albeit limited, benefits without proof of fault. 64. The second basis on which the jurisdiction of an arbitrator may be excluded is if the claim is with respect to entitlements or benefits under the WSIA. Such claims fall within the exclusive jurisdiction of the WSIB and/or the WSIAT by virtue of sections 118 and 123 of the WSIA. Further, disputes with respect to such claims do not expressly or inferentially arise from a collective agreement: they arise from the
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WSIA. Here the locus of inquiry is on the nature of the benefit or entitlement claimed. If the claim is not with respect to entitlements or benefits under the WSIA, an arbitrator will have jurisdiction to grant a remedy, provided the claim expressly or inferentially arises from a collective agreement. 65. In my view it is useful to separate these two jurisdictional inquiries. All claims for benefits or entitlements under the WSIA are for or by reason of an accident, since the occurrence of such an accident is a precondition to entitlement. The converse, however, is not true. The occurrence of an accident is not sufficient to bar all other claims. To repeat what Arbitrator Gray said at para. 107 of his decision in Monk: A "right of action" or claim to a remedy is not "for or by reason of" a workplace injury or disease merely because a workplace injury or illness forms part of the context in which the claim arises. As WCAT/WSIAT has clearly said, a claim for damages is precluded only if it relates to the consequences of the worker's having suffered the injury or contracted the disease. 65. Considering this case in relation to the above, and as addressed earlier, there is no doubt that the first basis applies: The grievor’s claim is “for or by reason of an accident” which occurred in the course of her work for the Board. She is seeking sick leave benefits for the period she continued to be off work due to her accident, a period beyond that for which the WSIB had granted her LOE benefits, as it had recognized that she had experienced a workplace accident. She is also claiming damages which arose as a result of the same situation, in that she refused the accommodated work offered by the Board. However, the WSIB found the Board’s offer of accommodated work was appropriate given Ms. Viteritti’s medical restrictions. 66. The second basis is also applicable as the grievor is claiming entitlements or benefits that were available to her under the WSIA. In part, her claim is to be paid under the sick leave Plan from November 25 to December 9, 2020. However, had the WSIB found her eligible for LOE benefits for that period of time, Ms. Viteritti would have had no claim under the sick leave Plan. Indeed, if her appeal to the WSIB had been granted, she may have received LOE benefits for the period up to her return to the accommodated work. 67. Thus, with respect to the grievance as it relates to the claim for 90% of Ms. Viteritti’s regular daily pay for the period of November 25 to December 9, 2020, I find that I am without jurisdiction to hear the grievance as the claim is barred by ss. 26(2) and 28(2) of the WSIA. RE ISSUE ESTOPPEL AND COLLATERAL ATTACK 68. While I am of the view that the grievor’s damages claim is also barred for the same reasons, since the grievance claims a violation of the Human Rights Code too, I
25 will address that issue specifically. The grievance claims human rights damages for pain and suffering and additional stress caused by the Board’s actions in failing to provide Ms. Viteritti with sick leave pay and benefits, and failing to provide her with appropriate accommodation for her disability. 69. I cannot accept the Union’s argument that the claims are not about the injury but about the grievor being cut off from her supplementary health benefits as of November 25, 2020, and not having them reinstated until December 10, 2020 when she returned to work. As the Employer argued, this is a circular argument. The reason the grievor was cut off supplementary health benefits was because she refused what the WSIB found to be a reasonable offer of accommodated work; she refused as of October 29, 2020, and continued to refuse after the Board again warned her that a return to work in the accommodated work by November 25, 2020 would result in the cessation of access to sick leave credits. Since as of November 25, 2020 she was on an unapproved leave of absence without pay, she was cut off the benefit plan until she returned to work. Thus, the claim for damages is linked directly to the failure to accept accommodated work following her workplace injury, which brings one back to the exclusive jurisdiction of the WSIB. 70. In any event, as will become clear below, the Human Rights Tribunal of Ontario has itself refused to hear cases where the WSIB has already addressed a workplace accident or illness claim, as it has found that issue estoppel applies, and to hear such complaints would be a collateral attack on the WSIB or WSIAT’s decisions. 71. In Figliola, cited above, a 2011 decision of the Supreme Court of Canada, Abella J. writing for the majority described issue estoppel and collateral attack as follows: 27. The three preconditions of issue estoppel are whether the same question has been decided; whether the earlier decision was final; and whether the parties, or their privies, were the same in both proceedings (Angle v. Minister of National
Revenue (1974), [1975] 2 S.C.R. 248 (S.C.C.), at p. 254). These concepts were most recently examined by this Court in Danyluk, where Binnie J. emphasized the importance of finality in litigation: "A litigant ... is only entitled to one bite at the cherry.... Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided" (para. 18). Parties should be able to rely particularly on the conclusive nature of administrative decisions, he noted, since administrative regimes are designed to facilitate the expeditious resolution of disputes (para. 50). All of this is guided by the theory that "estoppel is a doctrine of public policy that is designed to advance the interests of justice" (para. 19). 28. The rule against collateral attack similarly attempts to protect the fairness and integrity of the justice system by preventing duplicative proceedings. It prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route: see Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585 (S.C.C.), and Garland v. Consumers' Gas Co., 2004
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SCC 25, [2004] 1 S.C.R. 629 (S.C.C.). 72. Abella J. went on to state as follows regarding the collateral attack in that case: 47. "Relitigation in a different forum" is exactly what the complainants in this case were trying to do. Rather than challenging the Review Officer's decision through the available review route of judicial review, they started fresh proceedings before a different tribunal in search of a more favourable result. This strategy represented, as Stromberg-Stein J. noted, a "collateral appeal" to the Tribunal (para. 52), the very trajectory that s. 27(1)(f) and the common law doctrines were designed to prevent: ... this case simply boils down to the complainants wanting to reargue the very same issue that has already been conclusively decided within the same factual and legal matrix. The complainants are attempting to pursue the matter again, within an administrative tribunal setting where there is no appellate authority by one tribunal over the other. [para. 54] 73. The Union asserts that since the parties to the WSIB decision were not the same as in the grievance arbitration, (the grievor and the WSIB, rather than the Union and the Board), and since the WSIB adjudicator was making an administrative rather than a “judicial” decision, therefore the question of whether the accommodated work offered to the grievor was appropriate is not issue estopped. However, this is not an argument that has been accepted in any of the jurisprudence outlined here. 74. The grievor is a Board employee who filed a WSIB claim. The WSIB is essentially a proxy for the Board, which is a Schedule 2 employer on whose behalf the WSIB makes final decisions about workplace injuries or illnesses. In the grievance, the Union is a proxy for the grievor, and the issue is again with respect to how the Board treated the grievor subsequent to her having a workplace injury. As such, I am satisfied that “the parties or their privies” (Figliola, para. 27, excerpted above) are the same. The issue before me is essentially the same as what was before the WSIB, and the WSIB had made a final decision on the issues of whether the grievor was entitled to further payments for losses of earnings, and whether the Board had offered Ms. Viteritti an appropriate accommodated position based on her medical restrictions. As such, the test for issue estoppel is met in the circumstances before me. 75. What the grievor is seeking to do through this grievance arbitration is to relitigate the WSIB’s finding that the Board’s offer of accommodated work following the grievor’s injury was appropriate to her restrictions. The grievance specifically claims that the grievor was not properly accommodated. However, as has already been outlined in some detail above, the issue of whether an injured worker has been offered appropriate accommodated work by the accident employer is within the exclusive jurisdiction of the WSIB to decide. In this case it did so. 76. Whether the WSIB was right or wrong about its assessment is not for an arbitrator to decide, but to the extent that the grievor was of the view that the WSIB was wrong, she had the right to file an appeal. In this instance she did so; the WSIB
27 reviewed her claim again in light of all of the medical information she had provided; and in a decision dated December 24, 2020, upheld its initial decision disentitling her to continuing LOE benefits because the Employer had offered her appropriate accommodated work in October 2020. If the grievor wanted to appeal further, she had the right to do so through the WSIAT. It is unclear from the ASF whether she did so. In any event, she is seeking to collaterally attack the WSIB’s decision through the grievance in this proceeding, and I find that is not an appropriate use of the grievance arbitration process. 77. Although not dispositive of the question of whether a WSIB case manager’s decision should be considered as “another proceeding”, it is noteworthy that the HRTO has consistently held that where a WSIB case manager has made a finding that an employer’s offer of accommodated work was appropriate, the HRTO has declined to permit a complainant to proceed with a human rights complaint about an employer’s alleged discrimination on the basis of disability due to a failure to accommodate the person. The Code states as follows at section 45.1: 45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application. 78. In Ellis, cited above, the HRTO dismissed a complaint without hearing the merits where a corrections officer, who had been injured at work and had received WSIB benefits, alleged that her employer discriminated against her on the basis of her disability when it would not accommodate her at the correctional institution of her choice. The decision states as follows: 10. This Tribunal has repeatedly found that the decision of a WSIB Case Manager constitutes a "proceeding" within the meaning of s. 45. 1 of the Code. See, for example, Devouge v. Griffith Laboratories Limited, 2014 HRTO 1536; Morrison v.
2042204 Ontario Inc., 2019 HRTO 259 ("Morrison"); Allen v. Team Industrial
Services, 2020 HRTO 86; and Rockwell v. Laminacorr Industries Inc., 2020 HRTO 375. 11. As in those cases, the Case Manager in this case reviewed the evidence presented by the workplace parties and rendered a decision that the employer had suitably accommodated the applicant by reinstating her to her position at a different site from where she was injured. These decisions were also reviewable through the WSIB's appeals processes to the Workplace Safety Insurance and Appeals Tribunal ("WSIAT"). Consequently, I am satisfied that the Case Manager's decision was a proceeding for the purposes of section 45.1 of the Code. 12. It is clear that the Workplace Safety Insurance Act, 1997, SO 1997, c 16, Sch. A imposes obligations of a duty to accommodate under section 41(6), and that the WSIB Case Manager is required to consider such compliance under section 41(11). This Tribunal has held that a WSIB Case Manager has the jurisdiction to apply the
Code. That is because in Tranchemontagne v. Ontario (Director, Disability Support
Program), 2006 SCC 14, the Supreme Court confirmed that in the absence of a statutory limitation, there is concurrent jurisdiction to interpret and apply the Code.
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See also, Plummer v. Workplace Safety and Insurance Board, 2017 HRTO 1134 at para. 23. 79. Relying on the Supreme Court decisions cited in this proceeding, the HRTO went on to find as follows: 16. Figliola is clear that tribunals must avoid "the re-litigation of issues already decided by a decision-maker with the authority to resolve them." The applicant in this case is clearly unhappy with the outcome of the WSIB proceeding and including these allegations in the Application to this Tribunal is an attempt to relitigate the issues decided by the Case Manager. 17. The applicant has the ability to appeal this decision to the Workplace Safety Insurance Appeals Tribunal and confirmed that she has started this process. This Tribunal is not the appropriate forum to appeal decisions of the WSIB. See, Seberras
v. Workplace Safety and Insurance Board, 2012 HRTO 115 ("Seberras"). This Tribunal has held that the method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the applicable legislation. See Boucher v. Stelco
Inc., 2005 SCC 64 at para. 35, and Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 74. 80. In the 2014 Toronto Sun decision, cited above, the arbitrator noted that it would be an abuse of process to allow a grievor to collaterally attack a WSIB decision regarding the suitability of modified work offered by the employer, which had been within her restrictions, when she had not appealed that decision at the time. The arbitrator wrote as follows: 205. Thirdly, The Grievor’s complaints about the events back in 2006 involve the very issues determined by the WSIB. Those issues involve whether the Grievor was accommodated and provided with proper modified work. On June 14, 2007, the WSIB found that there was no medical basis precluding the Grievor from returning to the workplace and the Employer provided modified work that was within her restrictions. The Grievor did not appeal the WSIB’s June 14, 2007 decision. It would be unfair and an abuse of process for the Grievor to now be allowed to collaterally attack the WSIB’s decision in these proceedings. 81. Based on the jurisprudence outlined above, a claim for damages is precluded if it relates to the consequences of a worker having suffered a workplace injury. In the case before me, the grievor appealed the WSIB Eligibility Adjudicator’s decision finding that the Board’s offer of accommodated work was appropriate, but the original decision was upheld despite later FAFs being made available to the WSIB. In my view, this grievance is a collateral attack on the WSIB’s decision about the same accommodation issue, and as such, it would be unfair and an abuse of process to permit the relitigation of an issue that has been decided by the agency that has exclusive jurisdiction to determine issues arising out of workplace accidents or illnesses. As such, I am without jurisdiction to hear the grievance as all of the grievor’s claims arise out of the consequences of her having been injured at work.
29 82. I turn finally to the Union’s alternate argument that even if I found issue estoppel and collateral attack in this case, that I should nonetheless exercise judicial discretion, as a significant injustice will flow if this grievance is not heard. In this regard, the Union relied on the Supreme Court’s decision in Danyluk, cited above. 83. In Danyluk the Supreme Court addressed the issues of res judicata, issue estoppel and collateral attack. In that instance a worker had complained to the Employment Standards Branch in Ontario that her employer had not paid her commissions amounting to approximately $300,000. The employment standards officer conducting the investigation received information and documents from the employer that led her to conclude that the worker was not entitled to the commissions, and she so ruled. The worker had not been given an opportunity to respond to the employer’s version of events. The worker filed a wrongful dismissal suit against the employer after her employment was terminated, and claimed the commissions again in that action. The employer sought to have the commission claim struck as it argued that it was issue estopped due to the Employment Standards ruling, which the worker had not appealed. The lower courts had agreed with the employer, although the Ontario Court of Appeal had been concerned about the officer’s failure to provide the worker with the opportunity to respond to the employer’s evidence before the officer made her decision. 84. While the Supreme Court found that the preconditions for issue estoppel were met in that case, it too was concerned about the employment standards officer’s failure to afford the applicant natural justice as she had not given the applicant the opportunity to respond to the employer’s evidence, which negatively affected the applicant’s claim. The Court therefore addressed the appellant’s submission that the Court should exercise its discretion to refuse to apply issue estoppel as follows: 62. The appellant submitted that the Court should nevertheless refuse to apply estoppel as a matter of discretion. There is no doubt that such a discretion exists. In
Naken v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72 (S.C.C.), Estey J. noted, at p. 101, that in the context of court proceedings "such a discretion must be very limited in application." In my view, the discretion is necessarily broader in relation to the prior decisions of administrative tribunals because of the enormous range and diversity of the structures, mandates and procedures of administrative decision-makers. 63. In Bugbusters, supra, Finch J.A. (now C.J.B.C.) observed at p. 11: It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can apply, the fact that they may be satisfied does not automatically give rise to its application. Issue estoppel is an equitable doctrine, and as can be seen from the cases, is closely related to abuse of process. The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the
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circumstances of each case. Apart from noting parenthetically that estoppel
per rem judicatem is generally considered a common law doctrine (unlike promissory estoppel which is clearly equitable in origin), I think this is a correct statement of the law. Finch J.A.'s dictum was adopted and applied by the Ontario Court of Appeal in Schweneke, supra, at paras. 38 and 43: The discretion to refuse to give effect to issue estoppel becomes relevant only where the three prerequisites to the operation of the doctrine exist. . . . The exercise of the discretion is necessarily case specific and depends on the entirety of the circumstances. In exercising the discretion the court must ask - is there something in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice? . . . The discretion must respond to the realities of each case and not to abstract concerns that arise in virtually every case where the finding relied on to support the doctrine was made by a tribunal and not a court.
85. In the Ottawa Carleton District School Board decision, cited above, Arbitrator Knopf summarized the jurisprudence regarding the approach to be taken in the exercise of discretion to refuse to apply issue estoppel in a particular case. The arbitrator wrote as follows: 22. Further, the Supreme Court has indicated how the discretion should be exercised, again giving a warning that it has a "limited application," but advising that it may be "broader in relation to decisions of administrative tribunals because of the enormous range and diversity of structures, mandates and procedures of administrative decision makers," see Danyluk, supra at paras. 62-81. The seven factors suggested for the exercise of that discretion were: 1. the wording of the statute from which the power to issue the decision derives 2. the purpose of the legislation 3. the availability of appeal 4. the safeguards available to the parties in the proceedings 5. the expertise of the decision maker 6. the circumstances giving rise to the prior proceedings 7. any potential for injustice 23. This last factor was said to be the "final and most important factor," requiring an examination of whether the application of Issue Estoppel in a particular case, taking into consideration "the entirety of the circumstances", [para. 80]. … 25. All the considerations set out above are ably summarized in Figliola, supra, at para. 34: • It is in the interests of the public and the parties that the finality of a decision can be relied on.
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• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings. • The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature. • Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision. • Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources. [citations omitted] 86. In the course of this decision I have already outlined the answers to a number of the seven factors to be considered in the exercise of discretion. Through s. 118 (1) of the WSIA, the WSIB has been granted exclusive jurisdiction to “examine, hear and decide all matters and questions arising under the Act”. Pursuant to s. 118 (2) of the WSIA, the WSIB specifically has the exclusive jurisdiction to determine whether a person is cooperating in their return to work (subsection 4); whether the employer has fulfilled its obligations to return a worker to work (subsection 5); and, whether loss of earnings has resulted from the workplace injury (subsection 7). 87. The purpose of the WSIA includes to facilitate the return to work and recovery of workers injured out of and in the course of employment (s. 1(2)), and to provide compensation and other benefits for such injured workers (s. 1(4)). 88. Should an injured worker be dissatisfied with the result at any stage of their claim, there are various levels of appeal within the WSIB, and then to the WSIAT. As was apparent in this case, the Claims Adjudicator provided a reasoned decision for granting the grievor LOE in the first instance, and advised her of the right to appeal. Following the grievor providing further information as part of her appeal, and providing further FAFs to the WSIB, the Claims Adjudicator again issued a decision with reasons, and advised of the right to appeal further. While it is unclear whether the grievor availed herself of her right to appeal further, it is worth noting that the WSIAT is a respected appeals tribunal with expertise in matters relating to its own statute and issues relating to workplace injury and illness. It conducts quasi-judicial hearings and issues reasoned decisions. 89. Thus, in my view, there is no reason to lack confidence in the expertise of either the Claims Adjudicator or the WSIAT, as their primary purpose is the adjudication of workplace injury claims within the framework of the WSIA. That is not to suggest that a Claims Adjudicator would not make a mistake in their finding, but rather that the system itself is set up to permit an dissatisfied injured worker to appeal to higher levels, including to the WSIAT, which is certainly an expert tribunal, which conducts hearings with all the safeguards of natural justice.
32 90. As already noted, a grievance arbitrator cannot review the decisions of the WSIB. However, and in any event, unlike the facts in Danyluk, cited above, this is not a situation in which there is $300,000 or indeed any large amount at stake, and there is no evidence of a breach of natural justice by the Claims Adjudicator. 91. Based on the facts before me, there is no special injustice to the grievor in the circumstances of this case. As such, there is no reason to exercise my discretion to hear the grievance despite my finding of issue estoppel and that the grievance constitutes a collateral attack on the WSIB’s decision regarding the grievor’s workplace injury. 92. For all of the reasons outlined above, the Employer’s motion is granted, and the grievance is hereby dismissed. Dated this 30th day of May, 2022.
“Gail Misra” Gail Misra, Arbitrator