A labour arbitrator has awarded a unionized employee $5,000.00
in damages from his employer – despite the fact that the
employer was registered with the Workplace Safety and Insurance
The employee worked at a municipal community centre. On
the night of the shooting, he and four other employees went outside
at around 10:30 pm to warm up their vehicles before leaving.
They lingered near their vehicles for about five minutes. A
car that had been driving back and forth in front of the community
centre stopped, and two men got out and started shooting at the
five employees. One worker was shot in the leg and
"extensively injured", while the employee in question was
not shot, though he suffered some injuries in his effort to
escape. He did not require any immediate medical attention
and did not miss any work. He did not file a claim with the
WSIB. He still worked at the community centre.
The arbitrator noted that subsection 26(2) of the Workplace
Safety and Insurance Act provides that, "Entitlement to
benefits under the insurance plan is in lieu of all rights of
action" that a worker has against the employer because of an
accident happening to the worker in the course of employment.
The arbitrator decided that if the employee made or could
have made a claim to the WSIB for lost wages, pain and
suffering and/or mental distress, then the Workplace Safety and
Insurance Act would bar any claim – by grievance or
otherwise – against the employer for damages. However,
the arbitrator held that the employee, who suffered no lasting
workplace injury, permanent impairment or loss of work hours or
income, could not have made a claim to the WSIB. As such, the
Workplace Safety and Insurance Act did not bar his
grievance for damages.
The arbitrator was satisfied that there was a reasonable
prospect that the shootings would not have taken place had the
employer satisfied its obligations under the collective agreement
and Occupational Health and Safety Act to provide a safe
work environment for the workers. As such, the arbitrator
awarded the employee $5,000.00 for pain and suffering and mental
While the facts of this case are unusual in that the employee
was not entitled to WSIB benefits but did have pain and suffering
and mental distress for which he was entitled to damages,
the decision shows that in some rare cases, employees with WSIB
coverage could still claim damages directly from the employer.
Re Toronto (City) and CUPE, Local 79 (Charles), 260
L.A.C. (4th) 304 (Ont. L.A.)
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