Divisional Court Rejects Fault-Based Workers’ Compensation Grievances

In OPSEU v. Ontario et. al., Ontario’s Divisional Court recently upheld an arbitrator’s ruling to dismiss 22 (grouped) grievances over fault-based workers’ compensation claims.  Ontario Public Service Employees Union (“OPSEU”) sought judicial review of the arbitration decision after Arbitrator Owen Gray held that he could not award damages to grievors “for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer” if the alleged accident or disease is or was compensable under workers’ compensation legislation (the “WSIA”).

The WSIA, like most workers’ compensation legislation, is founded on the “historic compromise” by which workers lost the right to sue their employers for workplace accidents and occupational diseases and in exchange were covered under a mandatory, no-fault insurance regime.  The WSIA, like most workers’ compensation legislation, expressly takes away the right to seek benefits by way of damages in civil proceedings.

The grievances in this case alleged that exposure to second hand smoke in the workplace had either caused or had the potential to cause negative health effects.  A few of the grievors had already sought benefits at the Workplace Safety and Insurance Board (WSIB).  OPSEU based its submissions on provisions in the collective agreement, which required the employer to make reasonable provisions for the health and safety of its employees.  OPSEU argued that a breach of those obligations, expressed in the collective agreement, could form the basis for a grievance without offending the historic compromise.

Thankfully for employers across the province, the Divisional Court agreed with the arbitrator.  Many, if not all collective agreements contain some language that basically parrots obligations under health and safety legislation, or sets out particular agreements as to PPE and other aspects of OHS programs.  The Divisional Court confirmed that expressing those obligations in a collective agreement does not then provide an arbitrator with authority to award damages for violations of what are essentially statutory rights and obligations, particularly where legislation (the WSIA) expressly prohibits claims of that nature.

The Divisional Court affirmed the arbitrator’s finding that although parties are free to negotiate no-fault provisions in excess of workers’ compensation benefits (i.e. top ups), accomplishing this would require clear language, which was not present in the agreement in question.

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