Can an Arbitrator Award Damages Against an Employer for Making False Statements to the WSIB?

In what can only be described as a fairly novel case, a Union brought a grievance to the Labour Relations Board on behalf of a construction industry employee seeking damages against the employer for allegedly interfering with his claim.  The employer determined the worker had resigned after he failed to respond to an offer of modified work.  The Union did not seek reinstatement of the worker’s employment.

The worker alleged that he suffered an accident which caused him to leave work and prevented him from returning to active employment.  The worker alleged that the employer made false statements to the WSIB which resulted in the denial of the claim.  An appeal of the WSIB’s denial of the claim is apparently pending.

The Union asked the Labour Board to award damages in the amount of the loss of earnings benefits from the WSIB that the worker would have received in the event the claim had been allowed.  The Labour Board reviewed a number of recent decisions which have stated that arbitrators cannot award damages to a worker as result of a workplace accident and confirmed that an arbitrator does not have jurisdiction to adjudicate WSIB claims on the merits.

However, under the Labour Relations Act, an arbitrator does have the power to award damages for breaches of the Human Rights Code.  In this matter, Labour Board found that the worker was terminated as a result of filing a WSIB claim.  Surprisingly, the worker was only awarded $2,000 in general damages.  The Labour Board found that the worker had not provided medical information to the employer in a timely way and that the termination had “little or no effect” on the worker.  Ordinarily, a disabled worker who was terminated by an employer for discriminatory reasons could expect to receive a considerably higher general damage award.

The damage award only related to the termination issue.  The Labour Board has delayed making a decision on whether it has the power to award human rights damages against the employer for making false statements to the WSIB until the WSIB appeal process for the worker’s claim is complete.  It appears that the Labour Board is suggesting that is at least possible that a worker could recover human rights damages when an employer “interferes” with a worker’s WSIB claim.

We are hopeful that the Board will determine that it does not have the jurisdiction to make such an award.  In British Columbia (Workers’ Compensation Board) v. Figliola, the Supreme Court of Canada made it clear that tribunals should strive to the avoid the re-litigation of issues which already been decided by a decision?maker with the authority to resolve them.

In this instance, the WSIB apparently decided that the employer had not made false statements and denied the claim.  The worker is quite appropriately challenging this decision through the WSIB appeal process.  However, the Union has taken the additional step of commencing a related proceeding at the Labour Board seeking remedies arising out of the same events which apparently continue to be at issue in the WSIB appeal.

It is our view that matters relating to workers’ compensation should be decided by the WSIB or WSIAT and ought not to be re-litigated or be the subject of parallel litigation on essentially the same issue before an arbitrator or the Human Rights Tribunal.  It should also be pointed out that if the WSIB determined that the employer had in fact made false statements, it could commence a prosecution against the employer in Provincial Offences Court.

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