Employees Can Sue for Constructive Dismissal Caused by Chronic Mental Stress: ON Div Ct

Can an employee sue for constructive dismissal if the cause of the employment relationship break down is that the employee was subjected to chronic workplace harassment resulting in injuries otherwise compensable under the WSIB regime?

In a well-reasoned, no-nonsense decision, Morningstar v. WSIAT, 2021 ONSC 5576 (CanLII), the Ontario Divisional Court (Sachs, Backhouse and Kurke JJ.) overturned two earlier decisions of Ontario’s Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), about which I blogged in my post Employees Cannot Sue for Constructive Dismissal Caused by Chronic Mental Stress: WSIAT, and held that one can.

Workplace Harassment “Arises From” but does not “Relate To” Employment

Does workplace harassment simply “arise from and in the course of” an employee’s employment, or does it actually “relate to” that employment?

That question, as incredibly pedantic as it may appear, was of material consequence to a decision of the Ontario Grievance Settlement Board issued January 23, 2018: OPSEU and Ontario (Ministry of Community Safety and Correctional Services) (Rosati), Re, 2018 CarswellOnt 1017.

In short, the answer to that question drove the analysis as to whether a claim for workplace harassment was compensable pursuant to the newly revised provisions of the Workplace Safety and Insurance Act, 1997.

Workers Now Eligible for WSIB Benefits for Chronic Mental Stress and Workplace Harassment

On May 17, 2017, the Stronger, Healthier Ontario Act (Budget Measures), 2017, S.O. 2017 C.8 , formerly Bill 127, received Royal Assent. That act, which was omnibus legislation, amended no fewer than 48 statutes, including the Workplace Safety and Insurance Act, 1997. This post will focus on the changes to that statute.

Pursuant to Schedule 33 of the Stronger, Fairer Ontario Act (Budget Measures), 2017, employees eligible for Workplace Safety and Insurance Board (“WSIB”) benefits, are now eligible to make claims for “chronic or traumatic mental stress arising out of and in the course of the worker’s employment”

On December 14, 2017, the Stronger, Fairer Ontario Act (Budget Measures), 2017, S.O. 2017 C.22, formerly Bill 177, received Royal Assent. That act, which was also omnibus legislation, amended no fewer than 110 statutes, including the Workplace Safety and Insurance Act, 1997. This statute further amended the Workplace Safety and Insurance Act, 1997 with respect to claims for chronic or traumatic mental stress.