Highlights of Noteworthy Decisions

Decision 320 21
10/03/2021
G. Dee
  • Right to sue (injury for which benefits are payable)

The plaintiff in a civil case was a senior Crown Attorney. An allegation of personal and sexual harassment was made against the plaintiff by a female Crown Attorney working in the same office. The government temporarily suspended the plaintiff with pay while an investigation was undertaken. The suspension occurred in May 2017. The plaintiff sought psychological treatment. He left his employment in March 2018, after which he sued the defendant alleging wrongful dismissal amongst other things.

The plaintiff has not disputed that he was a worker covered by the WSIA during the course of his employment. The defendant submitted that the portion of the plaintiff's claim relating to mental health disorders should not be allowed to proceed. The plaintiff asserted that he did not have a psychological impairment prior to his suspension in May 2017, and his civil action did not claim for injuries sustained by him prior to his suspension.
This case was distinguishable from Decision No. 1227/19, where the plaintiff claimed that she sustained injury in circumstances that would have entitled her to pursue a claim under the WSIA for a mental stress disorder. Further, given the provisions of s. 13(5) of the WSIA, the plaintiff could not have established a claim for workers' compensation entitlement due to the defendant employer's actions after May 2017, when he was suspended from working, even if he wished to do so.
The Vice-Chair concluded that the plaintiff was not making any claim for damages in his civil action that the WSIA might take away under sections 26 through 29 of the Act, as he was not claiming damages in respect of injuries suffered prior to his suspension and he was not permitted to claim workers' compensation benefits in respect of his suspension.
There was a factual dispute regarding the existence and extent of any pre-existing condition. However, in the absence of any claim for damages for any injuries suffered prior to May 2017, the determination of the extent of any pre-existing condition (either work-related or not) and its impact on injury sustained, is a matter for the court and not the Appeals Tribunal to decide.
The application was denied.