Highlights of Noteworthy Decisions

Decision 395 22
08/11/2022
N. Perryman - K. Soden - S. Roth
  • Right to sue (action for breach of contract)
  • Right to sue (breach of fiduciary duty)
  • Right to sue (wrongful dismissal)
  • Human rights (discrimination) (disability)
  • Stress, mental (chronic)

The right to sue application was allowed in part.

The worker was not entitled to maintain an action in tort for HAVS, or for the intentional infliction of mental stress. The Panel noted that claims for which a worker would be or is entitled to benefits under the WSIA are generally statute barred. In addition, demoting an individual on the basis of an enumerated ground of discrimination, as set out in section 5 of the Human Rights Code, is "egregious" and "abusive" within the meaning of OPM Document No. 15-03-04, Chronic Mental Stress (CMS), and not related to an employment function. The respondent's claim of workplace harassment, which caused him to develop a psychological injury, fell squarely within the parameters of the Board's CMS policy.
Furthermore, the Panel found that the action against the applicant for breach of contract was not statute barred. The Panel noted that the WSIA should not be used to shield employers from civil liability when they terminate an individual unlawfully, or fail to comply with the terms of an employment contract, simply because a work-related injury is involved. In addition, the respondent was not statute barred under the WSIA from pursuing an action for breach of the Human Rights Code. The Panel noted there is nothing in the WSIA that prevents a worker from pursuing an application before the Ontario Human Rights Tribunal for damages, nor are its remedies within the scope of the WSIA. The Panel in Decision No. 407/21I noted that "there are substantial differences between the content and objectives of human rights legislation and the content and objectives of the WSIA." The Panel noted that an action in regard to a breach of human rights before the Court is akin to an application before the Human Rights Tribunal.
Lastly, the respondent was not statute barred from pursuing an action for breach of duty of good faith and fair dealing in relation to his termination. The Supreme Court in Bhasin recognized that the employment relationship is one in which a duty of good faith has traditionally been found to exist. The duty arises from the nature of the relationship. The Panel found that the mere fact that the respondent alleges that the cause of the breach (the termination) is the compensable accident and sequelae, does not negate the applicant's obligation to act in good faith in the context of the employment relationship, which is grounded in contract, not in tort.