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Home My WebLink About1986-0843.Osborne.88-12-09OWNTO CROWEMPLOiEES EMPLOYES 0s LA CO”POWE DE “ONT*aIO GRIEVANCE COMMISSION DE REGLEMENT DES GRIEFS !N THE MATTER OF AN ARBITRATION tinder THE C?OWN EtiPLOYEES,COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD . Far the Grievor: '~ For the Emolcyer! - OPSEU‘(Bil1 Osborne) _ y - and - . The Crown in Righg of Ontario (Ministry of Correctional Services') E. K. Slone Vice-Chairperson I. Freedman Member I.J. Cowan Member' J. Masher Counsel Gowline 8 Henderson Barristers & Solicitors B. Bowlby Hicks Morley Hamilton Stewart Storie‘ Barriscets & Solicitors I_ Nobember le, 1987 . . Grievor Emp 1 oye r , __~~_ .- - 2 : OSBORNE - INTERIM RULIBG The Grievor in this case has lung cancer, which he claims was caused or aggravated by secondhand cigarette smoke in the workplace. His grievance claims that his employer, the Ministry of Correctional Services, has failed to take reasonable provisions for his health and safety, contrary to Article 18.1 of the Collective Agreement, which reads: The employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the employer and then ?mion shall co-operate to the fullest extent possible in the prevention of accidents and~in the reasonable promotion of safety and health of all employees. The relief requested is: 1. That all free issue of any form of tobacco cease immediately; 2. That all subsidized tobacco no longer be sunsidized: and 3. To be monetarily compensated for his illness. PRELIMINARY OBJECTION This decision deals only with a preliminary objection raised by the employer, to the effect that the grievance is precluded by S. 14 of the Workers' Compensation A'ct which reads: "14. The provisions of this Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker or the members of his family are or may be entitled against the employer of such worker, or any executive officer thereof, for or by reason of any accident happening to him or any industri~al disease contracted by him on or after the 1st day of January, 1915 while in the employment of such employer and no action lies in respect thereof." Putting the argument into plain terms, it is argued that the intent of the Workers' Compensation Act is to.create a noyfault insurance plan that compensate; workers who are injured or become ill as a result of conditions in the workplace. It would thwart that purpose if.workers could sue or otherwise pursue private remedies to compensate them for such an injury. In the case of DiCarlo v..DiSimone (1982).14% D.L.R. (3d) 477, Osler, J..of the Ontario High Court expressed that point in these words,: "The.purpose of the Workmen's Compensation Act is to reinove from the Courts 3urasdlctlon to deal with the rights of employees and the liability of employers when personal injuries are suffered by employees of such employers in the course of their employment." , We.must not lose sight of the fact that the -Workers Compensation system has alwaye been confined within boundaries. One must be certain that a~ case falls within the scope of that system before reaching the conclusion that an individual is precluded by the law from pursuing his usual remedies. - 4 - In her written argument counsel for the Grievor has Rointed us to certain case law which shows that pan&j.s of this Board in the past have consistently avarded remedies for breaches of Article 18.1. See for example Gonneau 227101 :(Teplitsky), Km 371104 (Saltman) and, most recently Mysxko .2511/87 (Verity). In those cases, it is to be noted that the ,issue of the Workers' Compensation Act was not raised, and it would be wrong to draw too much comfort from those'cases. Suffice it to say that the parties have never treated the language of Article 18.1 a8 precatory only. Remedies are ,available in appropriate cases. Other cases cited, including Re Bendix Autcinotive of f Canada (1973) 3 L.A.C. (2d) 21 (Weatherill), have debated the preCiSe scope of S. 14 of the Workers' Compensation Act, and whether the term "rights of action" extends to rights to bring a grievance to enforce the provisions of a Collective Agreement. Were it clear that the Grievor in this case has a condition that could attract Mrkera' compensation, this point vould have to be addressed. However, we do not necessarily have to draw those fine or difficult distinctions to decide the issue in,this case. In our viev, the Workers' Compensation Act is a well . . - 5 - camouflaged red herring. For purposes,of this preliminary objection, we must take the facts as capable of being proved. We must assume .that the Ministry has behaved unreasonably in providing free or Subsidized tobacco to prisoners, and in exposing prison staff to unsafe levels of a generally deleterious and in fact i carcinogenic substance. We must assume that there is a causal connection between the Ministry's unreasonable behaviour and the extent of the Grievor‘s ser%ous illness. That the Grievor has suffered as a result of his illness can hardly be doubted. .- Surely a threshold question to be addressed is whether, ‘or not lung cancer is an industrial disease, Ss that term is defined by the Worke;s' Compensation Act. T?Ie relevant section reads: “s. l(l)(n) "industrial disease' includes, (i) a 'disease resulting from .exposure to a substance relating-to a particular process, a-trade,or . ,!occupation in an industry. (ii) a disease peculiar to or “” characteristic of a particular industrial process, trade or occupation. (iii) a medical condition that in the opinion of the Board requires a worker to be removed either' 'temporarily or permanently from exposure to S substance because the condition may be a-precur.sor to an . - I - 6 - industrial disease, or (iv) any of the diseases mentioned in Schedule 3 or 4:" It would stretch the meaning of any of these: definitions to include lung cancer caused by cigareste smoke - a substance that is not peculiar to any particular process, trade or occupation, but is prevalent throughout our society. The problem of secondhand tobacco smoke is not restricted to the workplace. Governments at all levels are grappling with the delicate issue of balancing the rights of smokers with those of others (smokers or not) who breathe the same air. A close look at the Workers' Compensation Act and the regulations thereto draws one to a conclusion that there is a particular class of medical conditions caused,by industrial processes - while not exhaustively listed - that vould qualify as industrial diseases. Not every illness contracted or aggravated as a result of conditions at the place of emgloyment would fit within that class. The Legiklature could have, but chose not to, define, industrial illness SO broadly. Implicitly the parties to the Collecti+ Agreement have recognized that by negotiating freely a covenant to promote health and safety. It is only the contracting of an "industrial disease" that triggers the machinery of the Workers' Compensation Act. Section 122(l) of the Workers' Compensation Act provides as . - 7 - follows: "122.-(l) Where an employee suffers from an industrial disease and is thereby disabled or his death is caused by an industrial disease and the disease is due to the nature of any employment in which he was engaged, whether under one or more employments, the employee is or his dependants are entitled to compensation as if the disease was a personal,injury by accident and the disablement wasthe happening of the accident, subject to the modifications hereinafter mentioned or contained in the. regulations, unless at the time of entering into the employmenthe has wilfully and falsely~ represented himself in writing as not having previously suffered from the disease." Thus, it follows ,that the contracting ~of a non- industrial disease is not treated as equivalent to the happening of a "personal injury by accident". It is only the , happening of such .an event~that triggers the machinery of the Workers' Compensation Act and, to protect the integrity of that system, precludes other proceedings to obtqin redress. It would be a gross failures of our Legal system if it both denied the Grievor a ~remedy under the Workers' Compensation Act because he had not contracted an "industrial disease", yet precluded him from launching another type of proceeding. - The preliminary objection,accordingly fails, and the grievance may proceed to a hearing on the merits. We would remark in passing, that we are awire of the \ . . , _< - 8 - I ;Grievor’s unsuccessful attempt to obtain compensation from I ithe Workers' Compensation Board. That Board denied benefits ostensijly on factual grounds. To our knowledge they did not express any view on whether or not his disease fell within the definition of "industrial disease". Perhaps in practice they are prepared to entertain applications that do not precisely fall within the statute. Perhaps they eventually would have concluded that he had no legal entitlement to ,benefits. In any event, we do not fault the Grievor for applying. Nor are we bound in any way by any factual findings apparently made by the adjudicators. Whi;le~ their opinion is to be respected it is our understanding that no hearings took place of the scope contemplated before this Board, and it would be unfair and prejudicial to give weight to a decision arrived at under less strict conditions than we : ourselves are bound to impose, particularly at this preliminary stage where we are only considering whether the Grievor's case is precluded by law from being heard on the merits. DATED at Toronto this E.K. SLGNE ,' VICE-CHAIRPERSON 9th day of December, .lggB. Af