A labour arbitrator has awarded a unionized employee $5,000 in damages from his employer, despite the fact that the employer was registered with Ontario’s Workplace Safety and Insurance Board (WSIB).
The employee worked at a municipal community centre. On the night of the shooting, he and four other employees went outside at around 10:30 p.m. to warm up their vehicles before leaving. They lingered near their vehicles for about five minutes. A car that had been driving back and forth in front of the community centre stopped, and two men got out and started shooting at the five employees. One worker was shot in the leg and “extensively injured,” while the employee in question was not shot, though he suffered some injuries in his effort to escape. He did not require any immediate medical attention and did not miss any work. He did not file a claim with the WSIB. He still worked at the community centre.
The arbitrator noted that subsection 26(2) of the Workplace Safety and Insurance Act provides that, “Entitlement to benefits under the insurance plan is in lieu of all rights of action” that a worker has against the employer because of an accident happening to the worker in the course of employment.
The arbitrator decided that if the employee made or could have made a claim to the WSIB for lost wages, pain and suffering and/or mental distress, then the Workplace Safety and Insurance Act would bar any claim — by grievance or otherwise — against the employer for damages. However, the arbitrator held that the employee, who suffered no lasting workplace injury, permanent impairment or loss of work hours or income, could not have made a claim to the WSIB. As such, the Workplace Safety and Insurance Act did not bar his grievance for damages.
The arbitrator was satisfied that there was a reasonable prospect that the shootings would not have taken place had the employer satisfied its obligations under the collective agreement and Occupational Health and Safety Act to provide a safe work environment for the workers. As such, the arbitrator awarded the employee $5,000 for pain and suffering and mental distress.
While the facts of this case are unusual in that the employee was not entitled to WSIB benefits but did have pain and suffering and mental distress for which he was entitled to damages, the decision shows that in some rare cases, employees with WSIB coverage could still claim damages directly from the employer.
Adrian Miedema is a partner in the Toronto Employment Group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts. For more information, visit www.dentons.com or www.occupationalhealthandsafetylaw.com.