- Employer (acting in personal capacity)
- In the course of employment (takes self out of employment)
- Jurisdiction, Tribunal (right to sue)
- Right to sue (action for breach of contract)
- Stress, mental
The plaintiff in a civil case was employed by the defendants. She brought an action against the defendants seeking damages for breach of human rights, and claimed that the defendants removed themselves from the employment relationship by their intentional actions and that abusive behaviour by a manager resulted in chronic stress. The defendants applied to determine whether the plaintiff's right of action was taken away.The worker submitted that the WSIA does not provide entitlement for gradual onset of chronic stress and that, accordingly, she was entitled to pursue a remedy for her injuries through civil action.The Vice-Chair noted that s. 31(1) provides that the Tribunal determines whether a plaintiff is entitled to claim benefits under the WSIA. An application under s. 31 is, in essence, a determination of the status of the parties (for example, worker or independent operator) and whether the facts as alleged in the pleadings would, if established, be within the scope of the WSIA. On a s. 31 application, it would be inappropriate for the Tribunal to make a determination on the merits of a claim.If the plaintiff made a claim at the Board for stress, it is certainly possible that the Board might consider the interactions with the manager to be a series of sudden and unexpected traumatic events, coming within the mental stress provisions in the WSIA and Board policy. Also, the Tribunal found in Decision No. 2157/09 that entitlement for traumatic mental stress was not available to a worker under the WSIA but found that s. 13(4) and (5) of the WSIA was of no force and effect due to the Charter of Rights and that, accordingly, the worker was entitled to compensation.The Vice-Chair concluded that the worker was not entitled to maintain an action on the basis that the WSIA does not provide her with a remedy. Allegations of the plaintiff, if proven, would lead to the conclusion that the plaintiff was entitled to claim benefits.The plaintiff also submitted that the defendants were not entitled to protection of the WSIA because their actions were designed to cause intentional harm to the plaintiff.The Vice-Chair stated that, although it is generally appropriate on a s. 31 application to accept the allegations in the Statement of Claim as true, that is not the case if the allegations go to the question of the status of the parties, which must be determined on the application. The allegation of intentional cause of harm goes to the status of the defendants as Schedule 1 employers. This is a determination the Vice-Chair is required to make. In making that determination, which might be inconsistent with the Statement of Claim, the Vice-Chair is at liberty to consider available evidence on the point.The Vice-Chair found that the defendants did not intentionally seek to harm the plaintiff. They were not acting outside the scope of the employment relationship. The Vice-Chair concluded that the plaintiff was not entitled to maintain the action against the defendants on the basis that their actions were intentional and malicious. The Vice-Chair noted that the manager was not a party to the action.The plaintiff alleged that many elements of harm occurred after she left employment. The Vice-Chair found that, none the less, most of the events were peripheral to the main cause of action and clearly related to her interactions with the manager in the workplace.The plaintiff asserted a claim for breach of contract. The Vice-Chair noted that a plaintiff cannot avoid a bar to an action for personal injury by framing the action in contract. In this case, the allegation of breach of contract related to the obligation of the employers to provide the plaintiff was a safe work environment. This is essentially the same harm which forms that basis of her claim for personal injury. Accordingly, the plaintiff could not maintain the action for breach of contract.The Vice-Chair concluded that the plaintiff's right of action was taken away, except for the element of the action claiming damages from breach of human rights and one aspect relating to video surveillance alleged to have occurred a year after the workplace events.