- Right to sue (action for breach of contract)
- Right to sue (economic loss)
- Right to sue (punitive damages)
- Human rights (discrimination) (disability)
- Right to sue (wrongful dismissal) (mental stress)
- Right to sue (wrongful dismissal) (constructive)
- Right to sue (special damages)
In this application under section 31 of the WSIA, the applicant sought a determination that the respondent's right of action against it had been taken away pursuant to the WSIA. The respondent alleged, among other things, that during her employment she suffered harassment, bullying, and isolation, from her direct supervisor and other employees. She sought damages for various claims, including for constructive dismissal.
The Vice-Chair allowed the application, in part.The Vice-Chair found that the worker was entitled to pursue her action for breach of contract for constructive dismissal with damages claimed based upon an alleged lack of notice. For the related damages of loss of RRSP participation and stock options, along with lost wages, these claims could proceed in the context of the alleged breach of contract, but were properly barred in relation to lost wages or lost earnings separate from the constructive dismissal remedy as those damages would be available as loss of earnings under the WSIA. The Vice-Chair accepted that the claim for breach of confidentiality, as it related to the contractual relationship between the parties, could proceed.The claims for damages in the civil action related to harassment, intentional infliction of mental suffering, and mental distress, including damages for extended notice due to poor health, lost wages and health benefits, counselling and psychotherapy expenses, were limited and/or statute barred. The Vice-Chair found that the respondent could pursue her claim for intentional infliction of mental suffering and mental distress in respect of injuries sustained as a result of the alleged constructive dismissal of her employment, but not otherwise for any injuries sustained due to the actions or inactions of the applicant that occurred in the course of her employment (see Decision No. 472/22). Further, punitive damages are not compensatory in nature and are instead designed to punish the conduct of the defendant/applicant. The Vice-Chair concluded that the respondent's claim for punitive damages in respect of the injuries sustained in her constructive dismissal action was not barred by the WSIA. In addition, the Tribunal lacks the jurisdiction to remove an individual's ability to bring an application to the Human Rights Tribunal under the Code, based upon the fact that such an application is not considered to be an "action" under section 31 of the WSIA. As these are damages for which there is no WSIA equivalent, they were not barred.With respect to special damages, the respondent pled that "as a result of her constructive dismissal...she would be put to various expenses in the course of seeking alternative employment, including inter alia, fuel, parking, transportation, résumé preparations, and printing, the particulars of which will be provided prior to Trial." The Vice-Chair agreed and found that special damages related to the alleged constructive dismissal of the respondent's employment could proceed, but were removed by the WSIA with respect to benefits such as labour market re-entry (section 42) provided by the WSIA. Further, the respondent's claim for damages for the applicant failing or refusing to provide a letter of reference is not a remedy for which damages flow under the WSIA and therefore would not be barred in the context of the section 31 application. The pleadings indicated that the respondent suffered from workplace harassment and had a DSM-5 diagnosis of Major Depressive Disorder with Anxious Distress. She was therefore entitled to make a claim for benefits under the WSIA in respect of her claimed chronic mental stress injury.