Can an employee put in a claim for CMS benefits under the WSIA AND claim mental stress damages at arbitration?

An Ontario Grievance Settlement Board (“GSB”) decision has provided some well-needed clarity on the question of whether an employee is able to claim losses and damages flowing from mental stress from employer actions that are alleged to be discriminatory and harassing in nature.

In OPSEU and Ontario (Ministry of Community Safety and Correctional Service, the union filed a number of grievances alleging that the grievor suffered mental stress as a result of the treatment she experienced due to the employer’s actions, which led her to take time off of work. The grievor sought various remedies, including compensation for lost time and medical expenses incurred. The Grievor was also seeking similar remedies for chronic mental stress benefits under section 13(5) of the Workplace Safety and Insurance Act (“WSIA”) stemming from some of the harassment allegations raised concurrently in his grievances.

The employer argued among other things that the injury or illness the grievor alleged was compensable under the WSIA. As a result, the arbitrator did not have the jurisdiction to award the remedies sought by the grievor and union.
The arbitrator agreed with the employer finding that if the mental stress flowed from the workplace due to employer actions, the Board would not have the jurisdiction to grant the remedies sought by the grievor. The arbitrator found that the critical question that needs to be asked is whether the injury or illness is “of the sort alleged by the grievor that would be or would have been compensable under the applicable statute if proven”.

While it remains to be seen whether this decision will be followed in subsequent decisions, it is a positive development for employers. Some of the key take-aways from this decision are as follows:

• Employers may be able to make the argument that a part of or a whole case should be dismissed at either the Human Rights Tribunal, during a wrongful dismissal action and/or at grievance arbitration on the basis that these claims ought to have been brought under the WSIA.

We will continue to monitor developments in this area of the law. If you have any questions, you can contact one of our lawyers at Bernardi Human Resource Law LLP.