HomeMy WebLinkAboutParkinson 24-06-24
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO AGENCY FOR HEALTH PROTECTION AND PROMOTION
(PUBLIC HEALTH ONTARIO)
(the “Employer”)
-AND-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 314
(the “Union”)
AND IN THE MATTER OF THE GRIEVANCE OF SABRINA PARKINSON
CONCERNING AN ALLEGED FAILURE TO PROVIDE A SAFE AND
HARASSMENT FREE WORKPLACE, DISCRIMINATION, AND
ACCOMMODATION
ARBITRATOR ROBERT J. HERMAN
APPEARANCES
FOR THE EMPLOYER GRANT R. NUTTALL
CATHERINE GREEN
SUSAN LEENEY
FOR THE UNION INDIKA CHANDRASEKARA
SABRINA PARKINSON
A HEARING WAS HELD BY ZOOM ON APRIL 30, 2024
AWARD
1. Although there is some dispute over the parameters of the grievance, it is clear that
the grievor alleges that the Employer, the Ontario Agency for Health Protection and
Promotion (Public Health Ontario), failed to provide a safe and harassment free workplace,
as set out below in the Agreed Statement of Facts.
2. The Employer disputes the allegations, and also argues that I have no jurisdiction to
entertain the grievance, because of Section 26(2) of the Workplace Safety and Insurance Act
(“WSIA” or the “Act”), as the grievance and the complaints set out therein relate to or flow
from a workplace injury. It maintains that the grievance must accordingly be dismissed.
This jurisdictional objection was heard as a preliminary matter, and the instant decision deals
only with the jurisdictional objection.
The Facts
3. The parties called no viva voce evidence. For purposes only of arguing the
jurisdictional issue, the following Agreed Statement of Facts (“ASF”) was filed:
The Parties have agreed that the facts contained herein can be relied upon as proven
for the purposes of the Employer's Jurisdictional motion to be heard on April 30,
2024. The facts contained herein cannot be relied upon as proven for any other
purpose or in any other matter.
The Parties
1. The Ontario Agency for Health Protection and Promotion, now known as Public
Health Ontario was divested from the Ontario Public Service ("OPS") in 2008.
The Employer operates in sites across Ontario, including eleven laboratories.
The laboratories conduct medical/diagnostic tests for physicians, hospitals and
medical officers of health.
2
2. The Union is the certified bargaining agency for all employees engaged in
laboratory testing services and administration save and except a number of
exceptions outlined at Article 1 of the parties' Collective Agreement (Tab 1). The
Union's Local 314 represents employees at the Employer's Orillia laboratory.
3. Sabrina Parkinson (the "Grievor"), is employed with the Employer as a
Laboratory Assistant 2 and has been since September 11, 2000.
Background Facts
4. On October 17, 2019, the Grievor brought a harassment complaint against a co-
worker ("Co-Worker #1") to her Manager, and as advised by the manager, filed
a Workplace, Discrimination and Harassment Prevention (WDHP) complaint
against the co-worker ("Co-Worker #1") on October 25, 2019. The Grievor
alleged that harassment began to escalate in April 2019 and continued to do so
throughout 2019. A copy of the WDHP Complaint Form is attached at Tab 2.
5. The Employer contracted Med-Arb Solutions to formally investigate the
Grievor's complaint. The investigation which began on December 13, 2019
included four specific incidents involving Co-Worker #1. This report was
completed on February 6, 2020 and the investigator substantiated some personal
harassment against the Grievor by Co-Worker #1. A copy of the February 6,
2020 report is attached at Tab 3.
6. According to the Grievor, despite repeated requests by the Grievor and Union,
the Employer did not share a copy of the investigation report with the Grievor.
According to the Employer the report was not shared with the Grievor in
accordance with the Employer's typical policy and practice.
7. The Grievor first sought medical attention for an onset of mental stress
symptoms on March 5, 2020. The Grievor began a leave of absence related to
these symptoms on March 20, 2020.
8. During the Grievor's absence, the Employer contracted ADR Chambers to
conduct a mediation between the Grievor and Co-Worker #1.
9. The Employer prepared a return to work plan. The Grievor returned to work on
September 8, 2020 temporarily accommodated to work in the Environmental
Department for three months. Co-Worker #1 was on a leave of absence.
10. The Grievor will say the Employer denied the Grievor's request to be
permanently accommodated in the Environmental Department citing operational
reasons.
11. Mediation between the Grievor and Co-Worker #1 took place on September 30,
2020. The Grievor will say the mediation was unsuccessful as a result of the
3
Grievor feeling further harassed by Co-worker #1 during the mediation process.
12. On October 8, 2020, another co-worker ("Co-Worker #2"), who was known to be
friends with Co-Worker #1 alleged that the Grievor slammed the door on her.
The Employer conducted an investigation into this incident. The Grievor asked
her manager to review video footage of the alleged incident.
13. On October 13, 2020 the Grievor commenced another medical leave.
14. The Union filed a grievance on behalf of the Grievor on October 20, 2020 (the
"Grievance"). The Grievance is attached at Tab 4. The Grievance alleges the
Employer failed to provide a safe and harassment free workplace in
contravention of the following Articles of the Collective Agreement:
3.1 Discrimination Due to Union Activity
3.2 Discrimination Due to Relationship Status
3.3 Right to Freedom of Harassment in the Workplace
5.1 F) Management Rights — Assignment of Work in a Discriminatory and
Bad Faith Manner
22 Modified Work — Accommodation in Accordance with Medical
(Permanent Separation)
15. The Grievance seeks the following remedies:
(a) That Co-Worker #1 and Co-Worker #2 be removed from
the worksite, the Orillia Public Health Laboratory;
(b) If the removal of the perpetrators from the worksite cannot
be achieved, financial compensation for:
(i) (a) the Grievor's salary and employer pension contributions up to
and including the Grievor's projected date of retirement;
(ii) (b) the Grievor's full benefit package up to and including her
projected date of retirement; and
(iii) (c) the Grievor's partial benefit package (50%) to which she would
otherwise have been entitled after her retirement date; and
(c) That the Grievor be made whole.
16. On October 21, 2020 the Employer conveyed to the Grievor the results of the
investigation into Co-Worker #2's complaint against the Grievor. The complaint
4
was not substantiated and was deemed resolved. The Grievor will say the video
footage confirmed Co-Worker #2's allegations against the Grievor were false.
17. The Grievor continued to be on a medical leave of absence.
18. On March 12, 2021, the WSIB allowed the Grievor's claim under WSIB Policy
15- 03-14 (Chronic Mental Stress) as it related to the alleged harassment. The
WSIB found that the Grievor incurred a workplace injury on March 5, 2020 for
which she established a Workplace Safety and Insurance Act claim known as
WSIB #31728995 ("the WSIB Claim"). A copy of the WSIB Claim decision
letter is attached at Tab 5.
19. The WSIB awarded the Grievor LOE benefits from March 20, 2020 to
September 8, 2020 and again from October 13, 2020 ongoing. The WSIB also
allowed entitlement to healthcare benefits.
20. The Grievor will say that it was in the spring of 2021 when she finally received a
copy of the investigation report completed by Med-Arb Solutions on February 6,
2020, through WSIB.
21. The Grievor continues to receive LOE benefits, although the quantum is reduced
as she has obtained alternate employment.
22. On March 25, 2022, the WSIB issued a decision that the Grievor was
permanently restricted from:
(a) Returning to work with prior co-workers;
(b) Returning to work with prior management; and
(c) Returning to work at her prior work building (Orillia
Laboratory, 750 Memorial Ave., Orillia).
23. The Grievor will say that to date the Employer has failed to reasonably
accommodate the Grievor short of undue hardship.
4. In addition to those parts of the grievance set out in paragraph 14 of the ASF, after
listing specific Articles asserted to have been breached, the grievance also includes the
following statements:
Any and all Articles or Legislation that may apply
5
Settlement Desired
Financial compensation for all lost wages while on medical leave and for pain and
suffering. To be provided a harassment free and healthy, safe workplace which
includes removing the perpetrators ([Coworkers 1 and 2 identified by name]) who are
guilty of harassment, from the worksite (Orillia Public Health Laboratory)
If removal of perpetrators from the work site cannot be achieved:
Financial compensation for salary and employer pension contributions up to and
including projected date of retirement and financial compensation for full benefit
package up to and including projected retirement date in addition to financial
compensation for partial benefit package (50%) which I would have otherwise been
entitled to after retirement date.
5. The decision issued by the WSIB on March 12, 2021 (para. 18 of the ASF) states in
part as follows:
. . . I have allowed your claim for mental stress injury because I have reviewed the
allegations identified by you and have determined the presence of substantial
workplace stressors in your employment . . . you will receive WSIB benefits. I am
allowing entitlement to healthcare benefits for the accepted diagnoses, and loss
of earnings (LOE) benefits from, March 20, 2020 to September 8, 2020, and
October 13, 2020 ongoing . . . To be eligible for WSIB benefits under Policy 15-03-
14 (Chronic Mental Stress) a person’s chronic mental stress must be an appropriately
diagnosed mental stress injury caused by a substantial work-related stressor or series
of stressors. Substantial means the work-related stressor(s) is excessive in intensity
and/or duration when compared to normal stresses experienced by people in similar
circumstances. . . a person may be entitled to WSIB benefits if their employer’s
decisions or actions are not part of the normal employment function, such as
violence or threats of violence.
(emphasis added)
6. Subsequent to the filing of the ASF, the Union advised that it was not pursuing as a
remedy that Co-workers 1 and 2 be removed from the worksite.
7. Relevant parts of the Act read:
6
Insured injuries
13.(1)
. . .
Mental stress
(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. 2017, c. 8, Sched. 33, s. 1.
Personal injury
(4.1) The worker is entitled to benefits under the insurance plan as if the mental
stress were a personal injury by accident. 2017, c. 34, Sched. 45, s. 1.
Same, exception
(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. 2017, c. 8, Sched. 33, s. 1.
Transition rules re mental stress. New claim.
. . . .
13.1 (2) If a worker’s mental stress occurs on or after April 29, 2014 and the
worker has not filed a claim in respect of entitlement to benefits for mental
stress before January 1, 2018, the worker or the worker’s survivor may file a
claim for entitlement to benefits for mental stress with the Board and the Board
shall decide the claim in accordance with subsection 13 (4) as it reads at the time
the Board makes its decision.
. . . .
No action for benefits
26 (1) No action lies to obtain benefits under the insurance plan, but all claims
for benefits shall be heard and determined by the Board. 1997, c. 16, Sched. A, s.
26 (1).
Benefits in lieu of rights of action
(2) Entitlement to benefits under the insurance plan is in lieu of all rights of action
(statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child
or dependant has or may have against the worker’s employer or an executive officer
7
of the employer for or by reason of an accident happening to the worker or an
occupational disease contracted by the worker while in the employment of the
employer. 1997, c. 16, Sched. A, s. 26 (2); 1999, c. 6, s. 67 (6); 2005, c. 5, s. 73 (6).
. . . .
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. 1997, c. 16, Sched. A, s. 118 (1).
Same
(2) Without limiting the generality of subsection (1), the Board has exclusive
jurisdiction to determine the following matters:
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. 4/29/24, 10:08 PM Workplace Safety and
Insurance Act, 1997, S.O. 1997, c. 16, Sched. A
https://www.ontario.ca/laws/statute/97w16 83/113
4. Whether a person is co-operating in reaching his or her maximum medical
recovery, in returning to work or in the preparation and implementation of a
labour market re-entry plan.
5. Whether an employer has fulfilled his, her or its obligations under the
insurance plan to return a worker to work or re-employ the worker.
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 dependant of an injured worker for the
purposes of the insurance plan. 1997, c. 16, Sched. A, s. 118 (2); 1999, c. 6, s. 67
(41); 2005, c. 5, s. 73 (40).
Finality of decision
(3) An action or decision of the Board under this Act is final and is not open to
question or review in a court. 1997, c. 16, Sched. A, s. 118 (3).
8
Same
(4) No proceeding by or before the Board shall be restrained by injunction,
prohibition or other process or procedure in a court or be removed by application for
judicial review or otherwise into a court. 1997, c. 16, Sched. A, s. 118 (4).
(emphasis added)
8. Relevant parts of the Human Rights Code of Ontario (the “Code”) read:
Act binds Crown
47 (1) This Act binds the Crown and every agency of the Crown. R.S.O. 1990,
c. H.19, s. 47 (1).
Act has primacy over other Acts
(2) Where a provision in an Act or regulation purports to require or authorize conduct
that is a contravention of Part I, this Act applies and prevails unless the Act or
regulation specifically provides that it is to apply despite this Act. R.S.O. 1990,
c. H.19, s. 47 (2).
9. The parties have not yet made opening statements but only submissions on the
jurisdictional dispute, without prejudice to their right to make full opening statements should
the matter proceed.
Submissions
10. The Employer submits that the grievance should be dismissed as I lack jurisdiction to
hear it pursuant to a s. 26(2) of the Act, as it is connected to a workplace injury.
Alternatively, it asserts I should decline to consider any monetary damages, as they arise
from a workplace injury.
11. The Employer notes that the ASF demonstrates that the grievance complains about an
9
unsafe workplace because of harassment at work, and that the grievor made application to the
Workers’ Safety Insurance Board (“WSIB”), seeking lost earnings because of a workplace
injury. Ultimately, in a decision dated March 12, 2021, the WSIB allowed the grievor’s
claim for Chronic Mental Distress as it related to the alleged workplace harassment. In its
decision, submits the Employer, the WSIB found that the grievor had incurred a workplace
injury on March 5, 2020 that justified its decision to allow her claim.
12. The Employer submits that remedies at arbitration for a compensable WSIB injury
are statute barred pursuant to S. 26(2). Further, the Employer argues, the grievor actually
made application to the WSIB for compensable benefits and it awarded her such benefits,
confirming the jurisdiction of the WSIB over issues concerning her workplace injury.
13. The Employer notes that the grievance does not allege a breach of Article 8 of the
Collective Agreement, which deals with “health and safety”, nor, it notes, is the
Occupational Health and Safety Act (“OHSA”) or the Code referred to or relied upon in the
grievance, and it submits that any such allegations do not fall within the scope of the
grievance.
14. Because of s. 118 of the Act, the Employer submits, the WSIB has exclusive
jurisdiction over issues of accommodation that arise from a workplace injury, and an
arbitrator has no jurisdiction to deal with such issues. Here, it asserts, the WSIB has made an
actual decision concerning accommodation issues with respect to the grievor, all the more
reason that an arbitrator cannot deal with the same or related issues.
15. With respect to the jurisdiction to address any “go forward” remedial relief sought by
the grievor, such as orders or directions ensuring a safe and harassment free workplace, the
10
Employer asserts that any such issues are moot, since the WSIB has concluded that the
grievor cannot return to work at the Orillia Laboratory (cf. ASF, para. 22) and she is not
seeking to do so. The dispute therefore remains in essence, submits the Employer, a dispute
over the consequences of an injury sustained at work, which is compensable by the WSIB
and for which the grievor has actually been compensated by the WSIB, and which has
therefore been fully resolved, and not a dispute over any return to work by the grievor or any
workplace safety issues that would impact the grievor. With respect to any ongoing or
future concerns that do not affect the grievor, the appropriate course, asserts the Employer, is
for the Union to file another grievance addressing any such issues should it still wish to
pursue them.
16. In the alternative, the Employer argues, even if all aspects of the grievance are not
dismissed, I cannot award compensatory or other types of damages, such as damages for pain
and suffering, lost vacation pay, or lost health or pension benefits, and I am limited to non-
financial orders that address a safe and harassment free workplace.
17. The Employer referred to the following decisions: Ontario Public Service Employees
Union v. Ontario (Community Safety and Correctional Services and Ministry of Children and
Youth Services), 2010 CanLII 28621 (ON GSB) [“Monk”] (upheld on judicial review, 2012
CanLII ONSC 2348 (Div Ct), 2013 CanLII ONCA 406), Maple Leaf Foods Inc. v United
Food and Commercial Workers, Local 175, 2018 CanLII 69918 (ON LA)(Surdykowski),
Peel District School Board v OPSEU, Local 2100, 2022 CanLII 45221 (ONLA)(Misra),
Ontario Public Service Employees Union (Patterson) v Ontario(Community Safety and
Correctional Services), 2017 CanLII 25459 (ONGSB), Ontario Public Service Employees
Union (Foley et al) v Ontario(Community Safety and Correctional Services), 2018 CanLII
11
119566 (ONGSB), Ontario Public Service Employees Union (Khan) v Ontario (Attorney
General), 2020 CanLII 32582 (ON GSB).
18. The Union responds by noting that the grievance refers not only to specific Articles
but to “any and all Articles or legislation that may apply”, which it submits includes Article 8
of the Collective Agreement, and it further submits that the grievor is asserting a breach of
both the OHSA and Article 8 of the Collective Agreement. In this respect, the Union asserts
that the form of the grievance is not critical, and that what is being grieved should be
considered in substance.
19. The Union asserts that I do have jurisdiction to address all the matters that have been
raised, as they do not fall within the restrictions in the Act setting out the exclusive
jurisdiction of the WSIB. It argues that in any event the jurisdictional matters in issue are
best decided at the conclusion of the hearing, and not on a preliminary basis, for some facts
or issues are not yet clear. For example, the Union submits, the grievor maintains that the
Employer’s delay in copying her with its investigation report contributed to the harm she
suffered, and the Union submits that the consequences of this delay are not compensable by
nor considered by the WSIB, and are matters to be considered in this arbitration, including
whether damages would be owed in respect of any breach thereof.
20. The Union relies upon Section 13(5) of the Act, which excludes from WSIB coverage
those matters falling within the “employment function”, a stipulation it asserts is also found
in the WSIB Policy Manual. It follows, asserts the Union, that the WSIB has no jurisdiction
over the matters raised herein, as the mental distress and its causes that are in issue fall within
the “employment exclusion”, and therefore are matters dealt with by arbitrators.
12
21. As well, submits the Union, it is not disputed that the Code has primacy over the Act,
including s. 26. Section 47(2) of the Code makes this clear, maintains the Union, and s. 45.2
of the Code entitles an adjudicator to make financial orders, and this would include the
jurisdiction of an arbitrator acting under the Labour Relations Act to make such orders,
which is the case here.
22. The Union also submits that the failure of the Employer to provide the grievor with a
copy of the investigation report in timely fashion itself constitutes a breach and is part of the
grievance.
23. The Union referred to the following decisions: Ontario Public Service Employees
Union (Grievor) v Ontario (Community Safety and Correctional Services), 2017 CanLII
92683 (ON GSB) (overturned on judicial review at Ontario Public Service Employees Union
v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services),
2019 ONSC 2952, reconsidered by the GSB at Ontario Public Service Employees Union v
Ontario (Solicitor General), 2021 CanLII 71640 (ON GSB); The Ottawa Hospital and
Ontario Nurses’ Association, grievance of Natalie Cudrasov, March 22, 2022 (Slotnick);
Unity Health Toronto and CUPE Local 5441, individual grievance of “JP” and Union
Policy Grievance alleging Improper Denial of Access to Short Term/Long Term Disability
Benefits, October 6, 2021 (Luborsky).
24. The Employer in its Reply submissions disputes a number of facts asserted by the
Union in its submissions. However, as I have only accepted the facts set out in the ASF or
which are not in dispute, it is unnecessary to set out other asserted facts that are in dispute.
13
25. With respect to the asserted employment exclusion related to s. 13(5) of the Act, the
Employer argues that the employment exclusion applies where the mental distress is caused
by “the employer”, which is not true in the case at hand, and as is made clear in the decision
of the WSIB. That exclusion does not accordingly apply, it submits, and the WSIB does
therefore have exclusive jurisdiction.
26. With respect to the issue of damages under the Code, the Employer asserts that this
issue has been addressed by prior arbitration decisions, as it was in Peel District School
Board v OPSEU, Local 2100 (above), and an arbitrator is without jurisdiction in the
circumstances to consider such damages.
Decision
27. With respect to the dispute over the scope of the grievance, the parties agreed if I was
able to decide some or all jurisdictional issues without having to determine the disputed
aspects of the scope of the grievance, I was to do so. If unable to do so, then the issues
concerning the scope of the grievance that had first to be determined were to be remitted to
the parties for their consideration, and if they remained unresolved, were then to be re-listed
for hearing.
28. While the Union asserts that this objection ought not to be heard on a preliminary
basis, given the nature of the objection, that I am without jurisdiction to consider the matters
raised by the grievor, it is appropriately addressed at this stage.
29. The grievor filed a claim with the WSIB that she was suffering mental distress
because of her workplace environment and incidents that took place at work. The WSIB
issued a decision on her claim on March 12, 2021. In that decision, the WSIB noted that it
14
was allowing the grievor’s claim “for a mental stress injury” and it “determined the presence
of substantial workplace stressors in [her] employment”. It granted the grievor entitlement
to health care benefits and loss of earnings benefits. In doing so, the WSIB noted that
interpersonal conflicts between workers are generally considered to be a typical feature of
normal employment, but “a person may be entitled to WSIB benefits if their employer’s
decisions or actions are not part of the normal employment function”. The WSIB concluded
that the mental stress suffered by the grievor was compensable; that is, it concluded that the
grievor’s circumstances did not fall within the customary employment function.
30. The law is clear that, generally speaking, claims for damages and/or compensation-
types of remedies because of workplace injuries or workplace related injuries, including
those from mental stress based on harassment or allegations of an unsafe workplace, are to be
addressed exclusively by the WSIB (unless, as noted, they fall within the normal
employment function). An arbitrator has no jurisdiction to consider any such claims insofar
as they relate to claims for financial compensation or other grounds of damages, such as lost
healthcare benefits, lost pension entitlement, or for pain and suffering, for they fall within the
exclusive jurisdiction of the WSIB, pursuant to ss. 26 and 118 of the Act.
31. In Peel District School Board v OPSEU, Local 2100 (above), the arbitrator provided
a good analysis of the jurisprudence and considered the issue of the jurisdiction of an
arbitrator in somewhat similar circumstances:
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. . . . .
15
54. Ultimately, Vice Chair Gray [in the Monk award] 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 2022 CanLII 45221 (ON LA) 19 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) . . . . 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. . . . . 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)).
. . . . 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:
16
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 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. 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
17
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
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.
18
. . . .
73. . . . 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.
. . . .
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. (emphasis added)
32. I agree with the analysis set out in that decision. In the instant case, the grievor
suffered a workplace injury, and she sought and received compensation from the WSIB for
mental stress incurred because of that injury. For reasons as expressed in the Peel District
School Board decision, sections 26 and 118 of the Act give the WSIB exclusive jurisdiction
over all the financial or compensation claims raised by the grievor in this arbitration. It
follows that I am without jurisdiction to consider such issues.
33. Section 13(5) of the Act does not in the circumstances provide an exception to this.
That section preserves jurisdiction for an arbitrator when the damages claimed are “caused
by decisions or actions of the worker’s employer relating to the worker’s employment” , or as
stated in the WSIB decision of March 12, 2021, the workplace injury falls within the “normal
19
employment function”. Where the workplace injuries arise out of circumstances beyond the
normal employment function, then it is the WSIB that has exclusive jurisdiction. Here, the
WSIB concluded that the mental stress suffered by the grievor did fall outside the parameters
of the normal employment function. The conclusion reached by the WSIB in this respect is
probably within the exclusive jurisdiction of the WSIB to determine, but even if it is not, the
facts set out in the ASF substantiate such a conclusion. The harassment that the grievor
experienced was from a co-worker, or two co-workers, and the nature of and duration of
those events and the harassment experienced cannot be considered part of a normal
employment environment or normal workplace circumstances. As such, the WSIB correctly
concluded it had jurisdiction to grant the grievor’s claim, a jurisdiction that is exclusive to the
WSIB.
34. The fact that a possible claim for a violation of the grievor’s human rights may exist
(if within the scope of the grievance) does not alter the conclusion that I am without
jurisdiction to consider the damages aspects of the grievance, as it remains true that any such
claim at arbitration arises from the grievor’s workplace circumstances and workplace
injuries. The arbitrator in Peel District School Board also addressed this issue, concluding
that she was without jurisdiction to consider all of the grievor’s compensable claims arising
out of her having been injured at work. I agree with her analysis and conclusion in this
respect as well, which conclusion applies in the present circumstances. As an arbitrator, I
have no jurisdiction to consider any of the claims for compensable damages for the grievor’s
injuries suffered as part of her workplace injuries. Whether the Human Rights Tribunal will
exercise a separate jurisdiction is for that Tribunal to consider, although I note that the
arbitrator in Peel District School Board (at para. 77 and following, not set out above)
20
indicated that the Tribunal will not entertain applications where an applicant has already had
his/her claim addressed by the WSIB, as it has been here.
35. With respect to issues of accommodation, the preliminary objection addressed only
peripherally my jurisdiction to consider such issues, as did the parties’ submissions. Should
my jurisdiction over any accommodation issues remain in dispute, this issue can be
addressed later.
36. While I am without jurisdiction to consider financially compensable issues or
damages that might flow from the workplace related injuries suffered by the grievor, there
are theoretically other matters not within the exclusive jurisdiction of the WSIB, and
therefore, if within the scope of the grievance, within my jurisdiction as an arbitrator. For
example, an arbitrator would typically have jurisdiction to consider issues related to whether
the work environment was and is safe, and could issue remedial orders to address any
breaches of obligations to maintain a safe workplace, whether under the Collective
Agreement or the OHSA.
37. The Employer asserts that there would be no labour relations purpose to addressing
such issues when I have no jurisdiction over the grievor’s compensation issues and when she
cannot return to the specific workplace in issue. However, issues about the scope of the
grievance and whether there is any labour relations purpose to engaging in a further inquiry
or issuing remedial orders in the circumstances are matters that the parties have not had full
opportunity to address.
21
38. Unless the parties advise otherwise, this matter will accordingly continue on
September 27, 2024, the date previously set for continuation of the hearing, to address any
issues remaining unresolved.
Dated at Toronto, this 24th day of June, 2024
Robert Herman – Arbitrator