Can an employee sue her former supervisor for sexual harassment if she has signed a Full and Final Release in favour of her former employer?
In the case of Watson v. The Governing Council of the Salvation Army of Canada, 2018 ONSC 1066 (CanLII), the Ontario Superior Court of Justice ruled that she might not be precluded by the release.
Can an employee sue her employer if she is sexually assaulted at work by a co-worker? In a decision by the Ontario Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), Decision No. 3096/17, 2018 ONWSIAT 1563 (CanLII), the answer was once again, “not if the employee is entitled to WSIB benefits.”
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.
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.
(c) istock/grinvalds
Is a legal ban on requiring high heeled shoes in the workplace inevitable? Probably.
On March 8, 2017, Dr. Andrew Weaver, Member of the Legislative Assembly of British Columbia for Oak Bay-Gordon Head (Green) introduced a Private Member’s Bill, Bill M237 — Workers Compensation Amendment Act, 2017. As the explanatory note to the bill explained, that bill would have amended the BC Workers Compensation Act, RSBC 1996, c. 492, by prohibiting employers from setting varying footwear requirements for their employees based on gender, gender expression or gender identity. Consequently, the law (if it had passed) would have made employers unable to require select employees to wear high heels.
The bill died on the order paper when the legislature rose on May 9th, ahead of the upcoming provincial election. It never really had a chance.
But, is such a ‘ban’ either coming to Ontario or inevitable? I think so.
Can an employee contractually waive his right to sue his employer if he gets injured as a result of a workplace accident? That is to say, will a waiver signed by an employee actually prevent an employee from suing his employer in negligence?
In a decision released January 26, 2016, by the Court of Appeal for Ontario, Fleming v. Massey, (2016), 128 O.R. (3d) 401, 2016 ONCA 70, the answer was “No, an employee cannot contract out of the right to sue his employer in negligence.”
Employees who become injured either at work or as a result of their workplace are especially vulnerable to losing their employment. This fact is recognized in Ontario law by the express inclusion of “injuries or disabilities for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997" in the definition of “disability” set out in the Ontario Human Rights Code. (Section 5 of that law provides that, “Every person has a right to equal treatment with respect to employment without discrimination because of… disability.”)
Notwithstanding this ostensible legal protection, injured workers continue to suffer workplace discrimination, often losing their employment as a result.
The case of Nason v Thunder Bay Orthopaedic Inc., 2015 ONSC 8097 (CanLII) provides a paradigmatic example of what can go wrong after an employee gets injured.
In this post, I will look at a single issue considered by the court in this case: Must a disabled employee who wants to return to work communicate the physical ability, not just the desire, to return to work?
Are locally engaged employees of the Consulate General of Canada in Boston (i.e. those hired by the Canadian Government to work in the consulate, but who are not Canadian diplomats), who get injured in the course of employment, “entitled” to workers compensation benefits pursuant to the provisions of Canada’s Government Employees Compensation Act, RSC 1985, c G-5?
While that question may seem oddly specific, and it is, it is not only one of the questions that the Massachusetts Department of Industrial Actions was forced to answer in the case of Cynthia L. Merlini, it is the question on which I was summonsed to provide expert evidence.
On December 11, 2012, I testified as an expert witness in Ms. Merlini’s case. Following the hearing, the trial judge, Administrative Judge John G. Preston, found, on the basis of my testimony, that Ms. Merlini was not “entitled” to benefits from the Canadian Government as a locally engaged employee.
More recently, however, the Reviewing Board held that Ms. Merlini was entitled to benefits and for that reason, and for two other reasons specific to Massachusetts law, which will not be considered by this post, reversed the Order to grant Ms. Merlini benefits from the Massachusetts Workers Trust Fund.
For the reasons set out below, here is why I think the Reviewing Board got the “entitlement” question wrong.
Is the limit on the receipt of WSIB loss of earnings benefits unconstitutional because is discriminates on the basis of age? According to a decision of the Ontario Divisional Court, Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289, the law is just fine.
In a decision that is sure to be relied upon, scrutinized and judicially reviewed, the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has found that the prohibition against claims by workers for mental stress to be unconstitutional.
Accordingly, in the case considered below, the WSIAT declined to apply subsections 13(4) and 13(5) of the Workplace Safety and Insurance Act, 1997, the result of which being that an employee who made a claim to the WSIB for benefits following years of workplace harassment might actually receive WSIB benefits.
Can an Ontario worker make a claim to the Ontario Workplace Safety and Insurance Board (WSIB) for benefits when the cause of injury is mental stress?
One of the joys of being a “lawyer for the suddenly unemployed” is that one gets to work in the field of overlapping insurance policies and acronyms: LTD, CPP, WSIB, EI, and occasionally SABS. While issues concerning the deductibility of various payments from other entitlements is often enough to make one reconsider his career choice, a recent decision from the Ontario Superior Court does supply some clarity with respect to the issue of an employer’s right to set of WSIB (Workplace Safety & Insurance Board) benefits as against wrongful dismissal damages.
In a decision welcomed by employers’ counsel (see others’ commentary here and here) the Honourable Justice Roland Haines, in his reasons for decision in Jensen v. Schaeffler, 2011 ONSC 1342 held that an employee’s receipt of WSIB income replacement benefits was to be deducted from her common-law, but not statutory, wrongful dismissal damages.
