The Ontario Divisional Court has upheld an arbitrator's
decision that a collective agreement provision requiring the
employer – two Ontario government ministries – to take
reasonable safety precautions could not be used to award damages
for occupational diseases.
The collective agreement provision stated:
"The Employer shall continue to make reasonable provisions
for the safety and health of its employees during the hours of
their employment. It is agreed that both the Employer and the Union
shall co-operate to the fullest extent possible in the prevention
of accidents and in the reasonable promotion of safety and health
of all employees."
The union filed approximately 235 grievances between 1991 and
2008 against the Ministry of Community and Correctional Services
and the Ministry of Children and Youth Services alleging that
exposure to second-hand smoke, particularly in correctional
facilities, violated the collective agreement provision and
entitled the employees to damages.
The arbitrator decided, and the court agreed, that subsection
26(2) of the Ontario Workplace Safety and Insurance Act,
which provides that entitlement to benefits from the Workplace
Safety and Insurance Board "is in lieu of all rights of action
. . . against the worker's 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", barred a claim for damages under the collective
agreement for an occupational disease – here, health issues
from exposure to second-hand smoke.
The end result was that the collective agreement safety
provision required the employer to take reasonable safety
precautions, but employees could not get damages under the
collective agreement for a breach of that clause that resulted in
an occupational disease. As such, the union's claim for damages
This case demonstrates that employees whose employer is
registered with the Workplace Safety and Insurance Board and who
claim to have suffered an occupational disease, must claim damages
from the WSIB and not from the employer under a collective
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