A landmark decision of the Workplace Safety and Insurance Appeals Tribunal (WSIAT), Decision No. 1227/19, has taken away Judith Morningstar's right to sue her employer for constructive dismissal related to workplace harassment.  This decision was preceded by a ruling of the Human Rights Tribunal of Ontario (2019 HRTO 1222) in which the HRTO dismissed Ms. Morningstar's application under section 34(11) of the Human Rights Code because she commenced an action against her employer seeking a remedy that, while not expressly citing section 46.1 of the Code, sought remedies that were substantially the same as those provided for under the Code.

The combined result of these two decisions is that Ms. Morningstar's only path to compensation for workplace harassment is under the Workplace Safety and Insurance Act (WSIA) in a claim to the Workplace Safety and Insurance Board (WSIB).

Since the beginning of 2018, the WSIA has provided a clear path for workers to claim compensation for chronic mental stress.  The chronic stress policy of the Workplace Safety and Insurance Board (WSIB) has identified that workplace harassment will generally be considered a substantial work-related stressor that contributes to a chronic stress injury.

Long before the amendments to the WSIA, Ontario labour and employment law has addressed workplace harassment by several different means.  The Occupational Health and Safety Act has established a framework for reporting and investigation of incidents of harassment.  The Human Rights Code prohibits harassment and discrimination in employment in respect of several personal characteristics, and specifically prohibits sexual harassment.  Labour arbitration jurisprudence has also addressed workplace harassment, whether in related to human rights or otherwise.  For non-union employees, wrongful dismissal jurisprudence has continuously evolved to deal with bad faith and abusive conduct in the workplace, building a framework for compensation to plaintiffs that goes beyond damages for reasonable notice.

The express inclusion of compensation for a chronic stress injury under the WSIA, especially as it relates to workplace harassment, has added a new element for a worker seeking compensation for an emotional or psychological injury caused by workplace harassment.  The WSIA displaces a worker's right to commence a civil action against the worker's employer and co-workers because of a work-related injury.  The WSIAT has exclusive jurisdiction to determine whether a worker's right to sue the employer or co-workers is taken away by the WSIA.  Similarly, the WSIB has exclusive jurisdiction to determine a worker's compensation for a work-related injury.

Over the past two years, there have been a few decisions of labour arbitrators that have addressed limits to an arbitrator's jurisdiction to grant compensation to a grievor for a work-related chronic stress injury due to workplace harassment.  Until the Morningstar decision, the WSIAT had not ruled on whether a worker's right to commence an action is taken away on a case of constructive dismissal flowing from allegations of workplace harassment.

Ms. Morningstar alleged that she was the subject persistent harassment and bullying by her co-workers.  When she sought support from her employer, she alleged that the employer was not supportive and did not take sufficient steps, or any steps, to remedy the harassment and, in fact, reinforced that behaviour.  The stress of the harassment caused her to be unwell and she left work as a result.  Ultimately, she resigned her employment due to the harassment and alleged that she was no longer capable of returning to work.  She filed an application to the HRTO seeking compensation for a breach of the Code and specifically sought an award for injury to dignity, feelings and self-respect.  She also commenced a civil action against the employer, seeking damages for constructive dismissal, the tort of harassment (which, as we have previously reported, has been addressed in a recent Ontario Court of Appeal decision), and sought damages for reasonable notice, and punitive, aggravated or moral damages.

The decisions of each of the HRTO and WSIAT critically reviewed the nature of the claims brought by Ms. Morningstar.  While the statement of claim did not expressly seek a remedy under the Human Rights Code¸ it was clear from the pleadings that the worker was seeking compensation in the nature of damages for injury to dignity, feelings, and self-respect, which falls within the scope of section 46.1 of the Code.  

The decision of the WSIAT looked closely at the allegations set out in the Statement of Claim.  While the WSIAT generally has not barred an action for wrongful dismissal, which typically involves a claim for damages for pay in lieu of reasonable notice, the Tribunal has in a few cases made clear that it is not the framing of the claim that is as important as the substance of the claim.  Where the claim, however framed, amounts to a claim for compensation for a workplace injury that falls within the scope of the WSIA, the WSIAT will determine that the right to sue for that compensation is taken away by the WSIA.

The substance of Ms. Morningstar's civil action, while framed as a claim for constructive dismissal, in essence was a claim for compensation for her work-related injury related to workplace harassment.  The WSIAT viewed that as a claim for a chronic mental stress injury.

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