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Workers’ Comp & Human Rights Claim?

- The Law on Workplace Sexual Harassment in Canada / Uncategorized  / Workers’ Comp & Human Rights Claim?

Workers’ Comp & Human Rights Claim?

At first blush, it seems untenable that the existence of workers’ compensation entitlement may have any impact on a human rights remedy. There is, however, argument that this may well be so.

More importantly, presuming momentarily that workers’ compensation is not a human rights defence, this issue leads to a very important decision as to the forum in which to bring an “action” where the claim is founded on an apparent human rights violation.

Step 1 – Defence to Workplace Tort Claims

It is clear that workers’ compensation coverage may be a full defence to a claim against the employer for civil claims which have been made due to employment wrongdoings.

For such a result to follow, there are two building blocks required. The first is that intentional conduct such as sexually harassing behaviour is covered by the relevant act. The second is that the pertinent statute allows for compensation for emotional distress.

As to the first issue, all statutes define “accident” to mean an event well beyond its normal meaning to include intentional conduct.[1]

Step 2

The second test which provides for emotional distress claims as allowable workers’ compensation entitlements raises a more difficult issue in certain jurisdictions.

Alberta’s workers’ compensation statute does provide for such a claim based on emotional distress. This resulted in the dismissal of an action brought for mental anguish based on allegations that the plaintiff had been bullied by his co-workers.[2] It mattered not whether the claim was brought in tort or contract.

The above decision was appealed and upheld. The action was dismissed.[3]

The second aspect of the test is apparently now met in Ontario. Ontario revised its statute as of January 1, 2018 to allow for benefits for “chronic or traumatic mental stress arising out of and in the course of the worker’s employment.

 

Decisions allowing for tort claims arising from workplace incidents,[4] and indeed the moral or aggravated damage claims[5], will be not be allowed where the employee is covered by this legislation.

What of Human Rights Claims?

There remains a further argument that the workers’ compensation statutes may deprive the relevant human rights commission of jurisdiction to award a damage claim for such a violation, given appropriate coverage.

There is considerable risk that these decisions will have a serious negative impact on the jurisdiction of the human rights body to award compensatory damages and lost income sums where the claim arises from workplace misconduct.

Generally, human rights legislation is considered quasi-constitutional and as such, supersedes any conflicting statute, unless specifically stated to the contrary in the human rights enabling legislation.[6]

Apart from the quasi-constitutional status argument, the human rights process does deal with broader issues from a public interest perspective and includes other forms of non-monetary relief, including reinstatement, which is not available by a workers’ compensation claim.

This would lead to the presumption of some comfort that the human rights regime was safe from erosion of its powers due to the workers’ compensation remedy. This may, however, not be a correct conclusion.

An action was commenced in Quebec by civil action seeking a remedy allowed by the Quebec Charter of Human Rights and Freedoms for exemplary damages based on a sexual assault. The plaintiff had also received compensation under the Quebec workers’ compensation statute for an “employment injury”.

The claim was denied[7] due to the application for workers’ compensation benefits, notwithstanding the quasi-constitutional status of the Charter remedy. The court did note that an arbitrator under a collective agreement would have been similarly prevented from making a damage award, but not “other remedial measures such as reinstatement or reassignment”.

This conclusion, if applied to a human rights statute, would allow the tribunal to still offer comparable specific remedies or public interest awards.

It is difficult to contemplate that the human rights remedy may be dramatically undone for those employed in an industrial work environment or otherwise covered by worker’s compensation legislation by a judicial or other reworking of workers’ compensation remedies, but clearly the argument remains, given the Supreme Court decision above.[8]

The success of this argument would mean that give the relevance of a workers’ compensation scheme the tribunal would be deprived of significant jurisdiction, undoubtedly a significant conclusion.[9]

Should this be so, the victim employee who has not brought a workers’ compensation claim on a timely basis may well find herself without a remedy.[10]

The answer may lie in the wording of the statute, at least, in Ontario.

The sole case dealing with this issue is a WSIA Appeals Tribunal decision[11] which interpreted its statute to define “action” to be only a civil claim and not a human rights complaint.

Section 31 of the Ontario statute states as follows:

(1) A party to an action or an insurer from whom statutory accident benefits are claimed under section 268 of the Insurance Act may apply to the Appeals Tribunal to determine,

(a) whether, because of this Act, the right to commence an action is taken away;

(b) whether the amount that a person may be liable to pay in an action is limited by this Act; or

(c) whether the plaintiff is entitled to claim benefits under the insurance plan.

For this reason, it was concluded that the statute did not bar a human rights complaint.

Consider the Remedy

Should this be so, a plaintiff, covered by workers’ compensation, facing a decision as to whether to sue in tort or proceed by a human rights complaint, in for example a sexual harassment case, would be well advised to proceed by the administrative remedy.

To Sum Up

The summary of the law, given a workplace tort and workers’ compensation coverage in place, is:

  1. There will be no civil action against the employer for physical and/or emotional harm;
  2. Given the wording of the Ontario statute, it is likely that the human rights tribunal has jurisdiction.
  3. There will be a civil claim allowed alleging that the offensive behaviour constituted a constructive termination.

 

[1] Most statutes governing such benefits use a similar definition of define “accident” to include willful and intentional conduct. Such is the case in British Columbia, Manitoba, the federal Government Employees Workers’ Compensation Act and the Merchant Seaman Workers’ Compensation Act, Alberta, Saskatchewan, Ontario, New Brunswick, Nova Scotia, Prince Edward Island, Labrador & Newfoundland, the Yukon. The legislation of Nanavut does not use a similar definition pattern as the above jurisdictions but does state these words which will likely include intentional conduct.

[2] Master Laycock of the Court of Queen’s Bench in Alberta in the March 2013 decision of Ashraf v SNC Lavalin ATP Inc.

[3] It may be noted that on the return of the first appeal, the plaintiff  amended the action to plead a constructive dismissal based on the same allegations which was also dismissed. This latter aspect of the decision was set aside by the Court of Appeal as the scheme of the workers’ compensation regime was powerless to deal with such a claim. The constructive dismissal plea was allowed to stand.

[4] Ontario Court of Appeal in which an award for the intentional infliction of mental distress was allowed. Prinzo

[5] as set out in Honda v Keays

[6] This principle was stated quite clearly in 2008 by the Nova Scotia Court of Appeal in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission).

[7] Béliveau St-Jacques v. Fédération des employées et employés de services publics

[8] Most workers’ statutory compensatory schemes allow for the benefits and then deny the applicant the right to claim “all rights of action (statutory or otherwise)”, which presumably will be argued to include the right to make a human rights complaint.

[9] A tribunal decision did refer to a similar plea in Snow v Honda (Joachim) in which the above case was not argued.

[10] If in time, there would always be a remedy for constructive dismissal.

[11] Decision No. 194/16

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