In the recent Decision No. 1277/19, the Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT or the Tribunal) held that the worker’s right to sue in a civil constructive dismissal action was taken away due to the connection between the facts forming the basis of her constructive dismissal claim and a claim for injury governed by the Workplace Safety and Insurance Act, 1997 (WSIA). Previously, WSIAT jurisprudence held that the right to bring an action for wrongful dismissal is not generally removed by the WSIA except in exceptional circumstances where the circumstances of wrongful dismissal are inextricably linked to the workplace injury. Decision No. 1277/19 demonstrates that constructive dismissal claimed on the basis of workplace harassment that has caused mental illness is exactly such an exceptional circumstance.
Under section 26 of the WSIA, the entitlement to benefits is in lieu of all other rights of action in respect of a work accident. This arrangement entails that, as set out in section 28 of the WSIA, workers cannot commence an action against their own employers (and sometimes other employers in certain circumstances), if covered by the WSIA regime, in respect of a work injury. WSIA recognizes chronic or traumatic mental stress arising out of and in the course of a worker’s employment as a compensable workplace injury that can entitle an employee to benefits under the WSIA.
The respondent employee worked for the employer in its housekeeping department starting in May 2015 and was promoted to the position of supervisor in 2016. She resigned from her position in February 2018, alleging constructive dismissal as a result of harassment and bullying in the workplace and filed a Statement of Claim making the same claim. In the Statement of Claim, she pled that she had been subjected to ongoing abusive, humiliating, and cruel conduct by other housekeeping employees and that the bullying and harassment she experienced during her employment had resulted in mental distress. The applicant employer filed an application to WSIAT seeking a declaration that the worker’s right of action against it was barred by the WSIA.
The Tribunal began its analysis by describing the WSIA legal framework and noting at paragraph 29 that “generally the Tribunal has found that the right to bring an action for wrongful dismissal has not been removed by the WSIA. It is only in the exceptional case that this is not so, where the circumstances of the wrongful dismissal claim are inextricably linked to the work injury.” Then, in proceeding to apply the law, the Tribunal found, at paragraph 34, that the case before it was one such exceptional case where the right of action was taken away due to the relationship between the facts underpinning the cause of action for constructive dismissal and an injury compensated under the WSIA:
In this case, as stated above, I find that the injury for which the Respondent claims damages in the action against the Applicant, albeit under several heads, all flow directly from the harassment and bullying she alleges in the workplace, the employer’s response to these allegations which contributed to the injury sustained, and the mental stress she experienced as a result. As such, I find that the foundational facts for the cause of action are inextricably linked to workplace harassment, an injury that is compensated under the WSIA, and thus the Respondent’s right to sue the Applicant is removed in these circumstances. Having found that the respondent employee’s right of action was taken away in this case, the Tribunal responded to various submissions raised by the respondent in opposition to this finding, the most notable of which were the following: (i) the right of action was not extinguished because the claim for constructive dismissal was based both on the alleged harassing conduct and the subsequent mishandling of the harassment complaint and (ii) that the constructive dismissal claim would exist even if the respondent had not suffered mental injuries.
With respect to the first submission, the Tribunal found that the mishandling of the harassment complaint was a component of the original harm claimed and that the employer’s action or inaction in addressing the complaint contributed to and worsened the harassment the respondent claimed she was exposed to, and the injuries she suffered as a result. The Tribunal refused to consider the second submission, finding it to be a hypothetical, speculative argument that was not represented in the facts that were before the Tribunal to consider.
This decision provides an authoritative example for the otherwise prior largely theoretical notion of a situation where the circumstances of a wrongful dismissal action are inextricably linked to a workplace injury, such that a right of action for wrongful dismissal is taken away.
Employers who are faced with a constructive dismissal action, where the former employee claims harassment causing mental illness as the basis for constructive dismissal, may seek to rely this decision as the basis for arguing that the claim is statute-barred. It remains to be seen how this case will be treated in future WSIAT jurisprudence and how this decision may apply where an employee has claimed constructive dismissal based on harassment, but has not alleged experiencing mental illness or other facts that may be characterized as a workplace injury.