Highlights of Noteworthy Decisions

Decision 2566 11
R. McCutcheon - B. Young - M. Ferrari
  • Abuse of process
  • Estoppel
  • Human rights
  • Psychotraumatic disability
  • Permanent impairment {NEL}
  • Waiver (right to compensation) (settlement)
  • Loss of earnings {LOE} (termination of employment)

The worker suffered a neck injury in 1999, for which he was granted a 19% NEL award. He suffered a second accident in January 2009, when he slipped and fell, injuring his neck and upper back. The worker returned to work but had difficulties with the job. The employer terminated his employment in August 2009.

The worker brought a complaint under the Ontario Human Rights Code, alleging harassment on the basis of disability and wrongful dismissal. The human rights complaint was settled, with the employer paying the worker $12,000.
The worker pursued objections to denial of benefits under the WSIA. The Board found that the worker had a permanent impairment as a result of the 2009 accident, with the impairment to be assessed after the worker reached MMR. It also directed consideration of entitlement for psychotraumatic disability. In implementing this decision, the Board rated the NEL award for permanent impairment at 0%, found that he did not have entitlement for psychotraumatic disability and that he was not entitled to further LOE benefits. The worker and the employer both appealed.
The employer, relying on the common law doctrines of abuse of process and collateral attack, submitted that the worker's claims related to the 2009 accident were barred because the worker settled his complaint under the Human Rights Code. The settlement stated that the parties were aware of their respective rights and obligations under the Code and the WSIA, and that the worker released the employer from all claims giving rise to the human rights application, including those based on statutes listed in the settlement.
The doctrine of abuse of process is applied to preclude re-litigation in circumstances where the strict requirements of issue estoppel are not met but where allowing the litigation to proceed would, none the less, violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. There are two preconditions to establish an abuse of process: the proceedings are oppressive or vexatious; and the proceedings violate the fundamental principles of justice underlying the community's sense of fair play and decency.
The employer's argument based on abuse of process can be dismissed on a number of grounds. Most importantly, s. 16 of the WSIA provides that an agreement to waive benefits is void. Thus, to the extent that the settlement of the human rights claim also purported to settle the workplace insurance claim, it is void and of no effect in this proceeding. Applying the two-part test for abuse of process, the Panel found that pursuit of rights under the WSIA is, in view of s. 16, not oppressive or vexatious and does not violate fundamental principles of justice.
Furthermore, abuse of process does not apply because the substance of the human rights claim is clearly distinguishable from the nature of the remedies and benefits available under the WSIA. The human rights claim related to harassment on the basis of disability and wrongful dismissal. The WSIA does not compensate for wrongful dismissal. The WSIA does not focus on discrimination; rather, it focuses on benefits for personal injury incurred in the course of employment.
The Panel referred to the Supreme Court of Canada decision in British Columbia (Workers' Compensation Board) v. Figliola. Where an adjudicative body decides an issue within its jurisdiction, the parties are entitled to assume that the decision is final and that it will be treated as such by other bodies. The Panel found that the facts in this case were distinguishable from Figliola. In Figliola, the workers were bringing the same arguments in a different forum in an attempt to circumvent the decisions with which they disagreed, whereas, in this case, the claim under the WSIA was distinct from the nature of the human rights claim.
The Panel also referred to the Ontario Divisional Court decision in Ontario (Ministry of Community Safety and Correctional Services) v. De Lottinville. De Lottinville noted that, in the administrative law context, common law finality doctrines must be applied flexibly to maintain the necessary balance between finality and fairness, and distinguished between the issues that were in dispute. In this decision, the distinction between the issues at the Tribunal and in the human rights complaint was arguably clearer than in De Lottinville.
The employer also relied on the doctrine of collateral attack. The Panel found that doctrine did not apply. The object of the workplace insurance claim was not an attempt to invalidate the settlement of the human rights claim.
On the merits, the worker was entitled to further LOE benefits. Evidence indicated that his injury did play a role in the termination of his employment and that suitable work was not available on a sustainable basis with the accident employer. There are two approaches in Tribunal decisions regarding LOE benefits after termination of employment. In the circumstances of this case, the worker would be entitled to further benefits under either approach.
The worker had a permanent impairment under the 2009 claim. The 0% NEL rating was flawed because it was based upon inconsistent and incomplete information that pre-dated surgery and the MMR date. The worker also had entitlement for psychotraumatic disability.
The employer's appeal was dismissed. The worker's appeal was allowed.