- Discrimination (age)
- Right to sue
This right to sue application was for a declaration and order to bar the plaintiff from commencing and maintaining a civil action against the defendants for damages stemming from an accident which occurred on July 15, 2016. The plaintiff was employed by the defendant/applicant company. On July 15, 2016, the plaintiff was in the course of her employment when she had a sudden onset of back pain moving a heavy item at the cash register.
The Vice-Chair granted the application, in part. The respondent's right to commence an action was taken away except with respect to the claim for discrimination based on age. Pursuant to section 31(1)(c) and section 31(4) of the WSIA, the respondent may file a claim with the WSIB for benefits in relation to alleged injuries resulting from the alleged workplace harassment within six months of this determination.The examination of the facts which the Tribunal must undertake further to the Morningstar analysis, as summarized in Chen, constitute not an analysis of the factual basis of the claim but, rather, a determination of the true nature of the claim asserted in the civil action to ensure that they are not a tort claim "for workers' compensation benefits in disguise." The Vice-Chair found that the following claims were statutorily barred as they were tort claims in disguise: workplace harassment, emotional distress, the low back condition, equity and fairness (overexertion and bodily harm), pain and suffering, and discrimination based on disabilities. The worker's claim for discrimination based on disabilities connected the alleged discrimination to a disability related to the workplace accident. No physical or mental disability distinct or separate from the workplace injury had been identified. Second, the worker's claim was not based on a cause of action distinct from a tort action for damages arising from injuries allegedly sustained in the course of employment.The worker's claim for discrimination based on age was allowed. The question of whether this cause of action was barred by the Human Rights Code fell outside of the scope of subsection 31(1)(a) of the WSIA, and for that reason was a question which may be considered by the Superior Court at which the civil action has been filed. The Vice-Chair noted that the lack of particulars in the plaintiff's Statement of Claim may be problematic under the Rules of Civil Procedure, but this was not a consideration for a determination of a section 31 application at the Tribunal.