An employee who was entitled to Workplace Safety and Insurance
Board benefits for a workplace injury could not also obtain damages
through arbitration, a labour arbitrator has decided.
The employee, a track worker with the Toronto Transit
Commission, was injured while removing old pieces of "running
rail" and replacing them with new ones at the "Wilson
Station cross-over". He applied for and received
benefits from the Workplace Safety and Insurance Board. He
later returned to work in an accommodated position.
The arbitrator held that it was clear that the TTC breached its
obligations under the Occupational Health and Safety Act
in a number of ways. The union argued that the employer's
breach of the Occupational Health and Safety Act was also
a violation of the "management rights" clause of the
collective agreement, entitling the employee to damages for the
breach and the injury.
However, the arbitrator stated, section 26(2) of the
Workplace Safety and Insurance Act precluded an award of
damages in respect of the injury, because entitlement to WSIB
benefits was in lieu of all other "rights of action" that
the employee had against the employer by reason of the
accident. In effect, the employee was entitled to the WSIB
benefits only, not to any other damages from the employer.
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