Highlights of Noteworthy Decisions

Decision 1232 21
L. Petrykowski - P. Greenside - M. Tzaferis
  • Right to sue (action for breach of contract)
  • Right to sue (negligent treatment)
  • Right to sue (punitive damages)
  • Right to sue (wrongful dismissal) (mental stress)

The Respondent initiated a civil action against the Applicant and the Interested Party (an employee of 2037020 Ontario Ltd.) for intentional infliction of emotional distress and wrongful/constructive dismissal.

The application was allowed.
The Panel noted that it is well established in Tribunal case law that, as a general rule, the WSIA does not remove a worker's right to pursue an action for wrongful/constructive dismissal. It is, however, the substance of the action and not the framing of the action that determines whether an action will or will not be allowed to proceed. A focus is required on whether the damages being claimed in the civil action are in respect of a work-related personal injury for which workers' compensation benefits may be paid, such that it is essentially a tort claim in disguise.
The Panel found that the request for damages advanced in the Respondent's claim under section 1(b) of the pleadings was in form and content a wrongful/constructive dismissal action, and did not include a request for damages in respect of any injury sustained in the course of employment. As such, this aspect of the Respondent's civil action against the Applicant was not removed by the WSIA.
The Panel determined that the Respondent's action for intentional infliction of emotional distress was removed by subsection 28(1) of the WSIA against both the Applicant and the Interested Party. The Panel found that the proper forum to claim benefits for the personal injury alleged to have been sustained by the Respondent was at the Board, as was initially the case in mid-2019. Therefore, the Respondent was entitled to apply for benefits to the Board for the above-described injury/illness circumstances pursuant to subsection 31(4) of the WSIA, within six months following the release of this decision.
In addition, the Panel noted that this also extended to any related claim for aggravated, punitive or special damages. The Panel agreed with the generalization that, to the extent that punitive, aggravated or special damages are associated with claims barred under section 31 of the WSIA, the related damage claims are also statute-barred. The Panel stated that it appreciated that there may be cases where aggravated or punitive damages are allowed to proceed, such as where there is "employer's bad conduct in the manner of dismissal" or where "independent actionable wrongs" exist, as noted in the Morningstar decision. However, no such circumstances were clearly advanced in the Respondent's pleadings.
The Panel also accepted the submissions of the Interested Party that the Respondent's right to sue him was entirely removed. The Interested Party was a worker of the Applicant, a Schedule 1 employer, as was the Respondent, at all material times. Given that the Panel had removed the Respondent's right to sue for intentional infliction of emotional distress and attendant damages, the Interested Party was also afforded the protection of subsection 28(1) of the WSIA.
The Panel pointed out that while the Respondent could maintain his claim for wrongful/constructive dismissal against the Applicant, the same did not logically apply to the Interested Party. There was no contract between the Respondent and the Interested Party. Therefore, the Respondent could not maintain a claim for a breach of the employment contract against the Interested Party in the manner that it could against the Applicant. Coupled with the fact that the Interested Party could not be sued for the intentional infliction of emotional distress, the Respondent's civil action was not permitted to proceed against the Interested Party.