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
FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Join our partners Karen Martin and Ryan Chalmers at the Pacific Business & Law Institute’s program, where they will be presenting a session titled "Procurement: Compliance with AIT, NWPTA, TILMA, NAFTA, TPP, CETA and the Statutes." This forum assembles leading government advisors to provide insights on key issues in local government today.
The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).