Morningstar v. Workplace Safety and Insurance Appeals Tribunal (“WSIAT”)
Under the Workplace Safety and Insurance Act (“WSIA”), workers forfeit their right to sue employers in tort for workplace injuries in exchange for a streamlined, no-fault avenue to compensation for their injuries. Under this scheme, the Workplace Safety and Insurance Board and the WSIAT have retained almost exclusive jurisdiction for all-claims arising from workplace injuries, including claims for chronic mental stress arising from the workplace. A recent decision highlights the concurrent liability that can exist for employers in the court and the WSIAT when chronic mental stress leads to a constructive dismissal.
The plaintiff in Morningstar filed a civil claim for damages arising from her constructive dismissal. She alleged that she had endured harassment, bullying and abuse which forced her to resign and entitled her to additional damages for mental distress and breaches of the Occupational Health and Safety Act. The employer filed an application with the WSIAT for a declaration that the employee’s action was statute barred because the WSIAT had exclusive jurisdiction to deal with claims for compensation for an injury such as chronic or traumatic mental stress arising in the course of the worker’s employment. The WSIAT sided with the employer, stating that the “right to sue” an employer for a dismissal can be removed where the cause of action is inextricably linked to a workplace injury governed by the WSIA.
On judicial review, the Divisional Court quashed the WSIAT ruling and held that in circumstances such as this one, the civil claim should be permitted to proceed despite the personal injury aspect of the claim being barred. An important factor in the decision was the finding that the plaintiff was not suing in constructive dismissal to improperly get around the limitations of the WSIA. Also considered was that the remedies the employee sought for constructive dismissal were not available under the WSIA. The court emphasized the distinction between seeking compensation for personal injury for chronic or traumatic mental stress, which is solely available under the WSIA-scheme, and damages for breach of contract for the employer’s failure to prevent that mental stress, available in a civil wrongful dismissal action.
This decision reminds employers of the potential concurrent liability that exists between the court and the WSIA-scheme when an employee claims constructive dismissal arising from mental stress. Employers should not be quick to rely on the WSIA as a shield to constructive dismissal claims related to mental stress.
While the court stated that this decision was consistent with previous WSIAT decisions which recognized that bona fide claims for constructive and wrongful dismissal should be permitted to proceed in the courts, it has been difficult to predict what the WSIAT would decide in a given case. How the WSIAT will apply Morningstar remains to be seen and employers should keep an eye out for our future newsletters. When faced with a claim involving mental stress, employers are advised to consult with a legal professional. The lawyers at Heeney Vokey LLP are happy to assist in this regard.
Raise in Minimum Wage effective October 1, 2021
Employers are also reminded that, on October 1, 2021, minimum wage in Ontario will increase by $0.10 per hour as follows:
- General minimum wage (applicable to most employees): from $14.25 to $14.35 per hour
- Students: from $13.40 to $13.50 per hour
- Liquor servers: from $12.45 to $12.55 per hour
- Homeworkers: from $15.70 to $15.80 per hour