There is a general principle that a matter adjudicated in one legal proceeding should not be pursued in different legal proceedings by the same parties. Effectively, you cannot sue twice over the same issue.
It is important to be aware of this principle in the context of workplace harassment, which an individual can seek remedies for under a variety of legal schemes such as the Human Rights Code (“Code”), the Superior Court, and the Workplace Safety and Insurance Act (“WSIA”).
WSIA and Civil Claims
Section 26(2) of the WSIA states that workers are statute barred from suing their employers for injuries that occur at work that they can receive benefits for under the WSIA workers’ compensation scheme. This rule became more wide reaching when the WSIA was amended to entitle workers to benefits for suffering from chronic mental stress. The three criteria required to establish chronic mental stress are:
- A DSM diagnosis by a regulated health care professional;
- There must be identifiable events that have caused the chronic mental stress that can be confirmed through information or knowledge provided by third parties; and
- It is a substantial work-related stressor arising out of the course of employment that is the predominant cause of the diagnosed injury.
Workplace harassment will generally be considered a substantial work-related stressor. Accordingly, the following question arose: are employee’s statute barred from bringing a civil claim for constructive dismissal based on workplace harassment because their injury is compensable under the WSIA? The case of Morningstar v. Hospitality Fallsview Holding Inc. shed light on this question and that of the interrelationship between Code and civil claims for constructive dismissal.
Ms. Morningstar alleged that her supervisor and coworkers harassed and discriminated against her based on the protected grounds of sex and disability. She claimed that she was placed on medical leave as a result of this conduct and filed an Application at the Human Rights Tribunal of Ontario (“HRTO”). She later resigned and brought a civil claim for constructive dismissal at the Ontario Superior Court based on the harassment and discrimination she experienced and for her employer’s response to her allegations. The employer submitted that her claim and Application should both be barred.
Despite not specifically claiming a remedy under s.46.1 of the Code in her civil claim, the HRTO barred Ms. Morningstar’s Application on the following basis:
- the facts and issues alleged in the civil claim and HRTO Application were the same;
- the civil claim and Application raised substantially similar allegations;
- the damages described in the Application and those available under s.46.1 are similar; and
- the applicant was seeking damages for the same alleged Code violation under the Application and civil claim.
The Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) held that Ms. Morningstar’s civil claim was also barred. The WSIAT outlined that the right to bring an action is taken away in “exceptional circumstances” where the circumstances of the wrongful dismissal are “inextricably linked” to the work injury. The WSIAT found that the circumstances were exceptional because it was a case of constructive dismissal arising out of the harassing conduct Ms. Morningstar experienced at work and which caused her mental distress. The WSIAT held this was inextricably linked to a claim for mental stress under the WSIA and noted that the damages in her civil claim all flowed directly from her allegations of workplace harassment and the employer’s response to those allegations. The WSIAT rejected Ms. Morningstar’s argument that her claim for punitive damages in Court should succeed because that remedy is not compensable under the WSIA.
This decision is very significant because the WSIAT has exclusive jurisdiction to determine the matter and there is no right to appeal the decision. The only means of reviewing the decision is by way of judicial review, where the Courts treat WSIAT decisions with deference.
Employers involved in workplace harassment claims in Court and at the HRTO should evaluate whether the claim is more appropriately dealt with under the WSIA. Future decisions will shed light on whether the Morningstar case will be distinguished on its facts or whether it stands for the more general proposition that all constructive dismissal claims based on workplace harassment are statute barred.
It is important to note that civil claims with allegations of workplace harassment in wrongful dismissal actions, where the employer has terminated the employee and not where the employee has claimed constructive dismissal, appear to be unaffected by the WSIA’s 26(2) prohibition.