Canadian Employment Law Today

October 20, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, 2021 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases The worker felt that the odour problem was solved, but her co-workers continued to harass and humiliate her, eventually complaining to management about the smell. Her manager didn't seem to care about what was going on and made offhand suggestions that she use fem - inine products — which the manager denied — shower, and wash her uniform. This further hu- miliated the worker, particularly since she had explained her medical issue to the manager. At a meeting with managers, the worker was forced to apologize to one of her harassers who had earlier admitted to misconduct. At a second meeting, management told her to work "more cohesively" with team members. This became too much for the worker, so she took a two-week medical leave on the recommendation of her doctor. While the worker was on medical leave, the hotel conducted an internal investigation into her allegations of harassment. When she re - turned, she was presented with the results — the investigation concluded that there had been no harassment, her co-workers had acted out of concern for health and safety, and her manager had not harassed her. The report recommended that the worker be assigned a designated chair at meetings, her colleagues not place towels on chairs, workplace complaints should be report - ed immediately, and the hotel should accom- modate its employees. The investigation report caused the worker further humiliation and distress. On Nov. 8, 2017, she went on leave. Worker didn't return The worker filed a complaint with the Ontario Ministry of Labour, which ordered Hilton to perform an independent workplace investiga - tion. This investigation concluded in Decem- ber, but Hilton waited an additional month before disclosing the full report — which found that the worker's co-workers and managers had engaged in workplace harassment. The harass- ers were required to take sensitivity training, but the worker would still have to report to the same manager and work with the people who had ha- rassed her. Hilton asked the worker to return to work but she refused, accusing Hilton of construc- tively dismissing her by failing to provide a safe work environment. She said that it would be "medically inadvisable" to return to work and resigned on Feb. 16, 2018. The worker sued for constructive dismissal, alleging breaches of health and safety legisla - tion as well as employment standards legisla- tion, along with harassment and a poisoned work environment. In addition to damages for constructive dismissal, she sought aggravated, moral, and punitive damages for the tort of ha - rassment. Hilton applied to the Ontario Workplace Safety and Insurance Tribunal to dismiss the worker's action because the province's Work - place Safety and Insurance Act (WSIA) prevent- ed workers from launching civil actions against their employer related to an injury for which they are entitled to receive workers' compensa- tion benefits under the WSIA. In this case, the worker's mental injury derived from stress for which she could have applied for workers' com- pensation benefits, Hilton argued. The tribunal noted that wrongful dismiss- al actions were not normally barred by the WSIA except in exceptional circumstances. However, it found that these were exception- al circumstances — the action was for dam- ages for constructive dismissal, not wrongful dismissal, which in this case "flow directly from the harassment and bullying she alleges in the workplace, the employer's response to these allegations which contributed to the injury sustained, and the mental stress she experienced as a result." This made the foun - dation for the worker's cause of action "in- extricably linked to workplace harassment" and an injury that is compensated for under the WSIA. As a result, the WSIA prevented the worker from commencing legal action for damages related to her mental injury, said the tribunal. The tribunal added that allegations of Hilton mishandling the harassment complaint were "a component of the original harm claimed" and contributed to the injuries the worker suffered that caused her to take medical leave. The worker applied to the tribunal for recon - sideration, but a different vice-chair denied the request. The second vice-chair agreed that the facts in the worker's claim were "inextricably linked to a personal injury arising from a work - place accident" and that personal injury was psychological. They also agreed that the circum- stances were exceptional and the wrongful con- duct by Hilton was linked to the compensable accident and it didn't matter if the worker's ac- tion was framed as constructive dismissal. Trade-off doesn't prevent constructive dismissal claims The worker appealed to the Ontario Superior Court of Justice. The court noted that the On- tario workplace insurance scheme under the WSIA provided no-fault benefits for workplace injuries based on "collective employer liability" and provided a trade-off of employees' right to sue in exchange for the certainty of benefits for workplace injury. However, employers should not be permitted to "insulate themselves from legitimate claims outside of the realm of tort," said the court. The court found that the tribunal took an un - reasonable approach to the worker's claim, as it focused on the linkage of the facts to the work- place accident, rather than the legitimacy of the constructive dismissal claim. The court pointed out that the tribunal didn't acknowledge the fact that the WSIA does not compensate claims for constructive dismissal. The court also found that although the WSIA bars a legal action for personal injury that can be compensated, it was unreasonable to bar an ac - tion for constructive dismissal "simply because the same facts that relate to that action also incidentally support an action for personal in- jury." The worker's constructive dismissal claim was not for personal injury and Canadian law allows different causes of action based on the same facts, the court said. The court agreed that the action for the tort of harassment and the poisoned work environ - ment are properly barred by the WSIA, but the constructive dismissal claim was not. It declined to remit the matter back to the tribunal and de- termined that the worker should be permitted to pursue her constructive dismissal claim in the Superior Court of Justice. For more information, see: • Morningstar v. WSIAT, 2021 ONSC 5576 (Ont. S.C.J.). « from ONTARIO COURT on page 1 Wrongful dismissal actions not normally barred by workers' comp act Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as the battle for gig workers' rights, the legal liability of poaching workers, and mandatory retirement for certain workers. You can view the blog at

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