Ontario tribunal also looks at claims of constructive dismissal
The Workplace Safety and Insurance Appeals Tribunal (WSIAT) in Ontario recently dealt with a case involving workplace harassment, constructive dismissal, and the interplay between civil actions and workers' compensation benefits.
This decision sheds light on the delicate balance between an employee's right to pursue civil remedies and the statutory bar against certain actions under the Workplace Safety and Insurance Act (WSIA).
The case centred around a worker who had been employed by Apple Canada Inc. since May 3, 2010, most recently holding the position of store leader.
Apple supervisor’s harassment and bullying
She alleged she experienced harassment and bullying from her supervisor over a 13-month period, from February 2016 to March 2017. This led to three medical leaves of absence due to anxiety and depression.
The worker took her first medical leave from April 17 to May 31, 2016, resumed work briefly, then took another leave from June 2 to October 2016. She returned to work for a few months before taking a third medical leave in March 2017, from which she had not returned at the time of the hearing.
In March 2018, the worker filed a civil action against Apple, claiming constructive dismissal and seeking various damages. The Statement of Claim was amended twice, with the final version filed in October 2023. In her claim, the worker alleged that during her employment she suffered harassment, bullying, and isolation from her direct supervisor and other Apple employees.
She sought damages for constructive dismissal, claiming it resulted from Apple's failure to respond to the harassment, investigate it, discipline the harassers, provide a workplace free from harassment, and Apple's requirement that she continue to work with her harassers.
Apple, a Schedule 1 employer under the WSIA, applied to the WSIAT to determine whether the worker's right of action was taken away by the WSIA, and if she was entitled to claim benefits under the insurance plan instead.
Key questions before the Tribunal included:
1. Whether the damages claimed in the civil action resulted from a work-related personal injury compensable under the WSIA.
2. Whether certain claims represented damages for constructive dismissal that exist separately from a workplace injury claim.
Parties' arguments
Apple argued that many of the worker's claims, if proven true, would entitle her to benefits for chronic or traumatic mental stress under the WSIA. They contended that while the constructive dismissal claim could proceed, other tort-based damages should be barred.
The worker's representative countered that her case was similar to a precedent-setting decision (Morningstar v. WSIAT) where a civil claim was allowed to proceed.
They argued that barring the action would leave the worker without recourse, as the WSIA didn't compensate for mental distress at the time of her alleged constructive dismissal.
The worker also testified that she didn't apply for WSIB benefits initially because she was informed by a company representative that a WSIB claim was not permitted for bullying and harassment.
She chose to proceed with a civil claim because she felt Apple should "take responsibility for what they did and that other people should know."
Tribunal's analysis
The WSIAT examined each head of damages claimed in the civil action, weighing whether they arose from work-related injuries compensable under the WSIA or from separate contractual breaches.
The Tribunal emphasised the need for restraint when considering barring claims not based in tort, citing the Divisional Court's guidance in Morningstar:
"When properly conducted, the Tribunal's s. 31 assessment 'reasonably begins from a position of restraint on the part of the [Tribunal] when an application is made to bar a claim that is not in tort'."
This approach recognises that while the WSIA generally bars tort actions for workplace injuries, it doesn't necessarily preclude claims based on breach of contract or other legal grounds.
Constructive dismissal and contractual breach
The Tribunal allowed the worker's claim for constructive dismissal to proceed, noting:
"I find that the claims made are based upon an allegation that there was a lack of appropriate notice of termination of the employment contract... These claims may be established by the worker before the courts without any need to establish that she experienced a personal injury as a result of the employer's conduct."
This ruling aligns with the principle that damages for wrongful or constructive dismissal are not compensable under the WSIA and thus can be pursued in civil court.
The Tribunal found that claims related to workplace harassment and resulting mental distress were largely barred by the WSIA. The decision stated:
"If these assertions are accepted, they would result in the worker having entitlement to workers' compensation benefits under the WSIA."
However, the Tribunal allowed claims for mental distress specifically tied to the alleged constructive dismissal to proceed.
The Tribunal further permitted certain claims under the Human Rights Code to continue, particularly those related to dignity and self-respect.
Consequently, the WSIAT's decision demonstrates the complex considerations involved in determining whether civil actions can proceed alongside potential workers' compensation claims. The Tribunal summarised its findings:
"The application is allowed in part... The worker's action for damages for breach of duty of confidentiality (as it relates to the contractual relationship between the parties), constructive dismissal in lieu of an appropriate notice period of dismissal, special damages related to the constructive dismissal, and damages for failing or refusing to provide a letter of reference... may proceed."
However, the decision also emphasised that certain claims were barred:
"The worker's claim for all other heads of damages, including the following, are removed by the WSIA: an extended period of notice... lost wages other than for the lack of sufficient notice of termination... future lost wages... and, counselling and psychotherapy expenses."
This ruling underscores the importance of carefully framing civil claims in cases involving workplace injuries or harassment. It also highlights the ongoing tension between providing workers with access to civil remedies and maintaining the integrity of the workers' compensation system.
