Who pays the cost of rescheduling a honeymoon delayed due to a workplace encounter with a bat?
A workplace injury or illness may have financial implications for employees and their families other than lost time at work. In a recent labour arbitration decision, Arbitrator Lorne Slotnick revisits the jurisdiction of a labour arbitrator to award compensation for collateral damage flowing from workplace injury. Spoiler alert – the interrupted honeymoon is not compensable.
a) Background Facts and the Grievance
The grievor was a permanent part-time nurse in an in-patient psychiatric unit at the Ottawa Hospital. On September 2, 2019, the grievor encountered a bat at work; it was ultimately unclear whether the bat touched or scratched the grievor. The bat was captured by the hospital, and the union claimed it was then improperly released without consulting public health authorities or the union or grievor, and without any effort to test the bat for rabies.
The union claimed the hospital’s policies did not require testing of the bat, which the union viewed as a violation of the Occupational Health and Safety Act (OHSA) and the collective agreement. The union also claimed that the hospital failed to report the incident to the Ministry of Labour as a critical injury, which would have prevented the release of the bat without an inspector’s permission. Given the virtual certainty of death for a person who contracts rabies, and the possibility that the bat had scratched her, the grievor was administered the rabies post-exposure prophylaxis, which included a series of vaccines over a two-week period.
The grievor’s wedding had taken place a few days before the incident, and she was scheduled to depart for Europe with her husband on her honeymoon on September 9 until September 25. However, the schedule for the rabies vaccines forced her to cancel part of the trip, a loss which the union quantified as slightly more than $8,000. The grievor’s husband was also forced to hire managers for the two restaurants he owned at a cost of $2,448, in anticipation of being away starting September 9 as the grievor and her husband did not travel until September 17 due to the vaccine schedule.
The Workplace Safety and Insurance Board (WSIB) allowed the grievor’s claim for health care benefits but rejected her request for financial reimbursement arising from the disruption of her travel plans. The union sought compensation on behalf of the grievor for these losses.
In our prior publication, we wrote that labour arbitrators are increasingly willing to award monetary damages for employer breaches of the collective agreement. In the case before arbitrator Slotnick, the union sought declarations and damages for itself and the grievor, pointing to various provisions in the collective agreement and OHSA. The hospital sought a preliminary ruling that the Arbitrator Slotnick had no jurisdiction to award damages because the claim arose from a workplace compensable injury or illness.
b) The Workers Compensation Trade off
Workers’ compensation in Canada was first introduced in Ontario in the early 20th Century. The model that was introduced had origins in Germany, Great Britain and the United States of America. The model involves a trade-off: employees relinquish their right to sue in exchange for compensation benefits.
There are five basic cornerstones to the original workers’ compensation laws that continue to this day:
- No-fault compensation: Workplace injuries are compensated regardless of fault. The worker and employer waive the right to sue. There is no argument over responsibility or liability for an injury. Fault becomes irrelevant, and providing compensation becomes the focus.
- Collective liability: The total cost of the compensation system is shared by all employers. All employers contribute to a common fund. Financial liability becomes their collective responsibility.
- Security of payment: A fund is established to guarantee that compensation monies will be available. Injured workers are assured of prompt compensation and future benefits.
- Exclusive jurisdiction: All compensation claims are directed solely to the compensation board. The board is the decision maker and final authority for all claims. The board is not bound by legal precedent; it has the power and authority to judge each case on its individual merits.
- Independent board: The governing board is both autonomous and non-political. The board is financially independent of government or any special interest group.
See Brief Summary of Canadian Workers’ Compensation System.
c) The Monk Decision
The historical trade-off embodied in workers compensation legislation means that not all damages arising from a workplace injury are compensable. It also means that compensation for unsafe work conditions is determined by the WSIB. The leading case on this issue is the Ontario (Ministry of Community Safety and Correctional Services) and OPSEU[1] decision commonly known as Monk. That decision, which was upheld by the Divisional Court, and the Court of Appeal, confirmed that both damages arising from negligence (tort) and damages under contract were captured in the trade-off. The Court of Appeal wrote:
In our view, it makes no difference whether the claim is framed in tort or in contract. It is the substance of the claim that matters. The Vice-Chair was correct in his conclusion that the Board could not award damages under the collective agreement for compensable injuries to which the WCA or the WSIA would have applied.
The Monk case involved grievances related to exposure to second hand smoke in correctional facilities. Grievances were filed on behalf of employees who had not yet exhibited any specific health problems but who were concerned with the long-term effects associated with second-hand smoke. In all grievances, the main remedy sought was damages arising from the employer’s alleged violation of the health and safety provisions in the collective agreements. The Grievance Settlement Board arbitrator found that he was without jurisdiction to hear the grievances and that decision was affirmed by the Divisional Court and the Court of Appeal.
d) Other Authorities Considered
Arbitrator Slotnick reviewed the Monk case and many examples of other authorities (some of which are summarized on our prior publication) where the union sought and was awarded damages by an arbitrator. He also reviewed the recent Divisional Court decision, Morningstar v. Hilton. We summarized the Morningstar case in a recent publication. The case was not a labour arbitration. It was a claim for constructive dismissal arising from harassment in the workplace. The employer sought a ruling from the Workplace Safety Insurance Appeals Tribunal (WSIAT) barring the constructive dismissal complaint on the basis that the claim for damages was derived from an injury in the workplace (mental stress). The Divisional Court found that the WSIAT’s decision was unreasonable as it went beyond the historical trade-off and barred a claim for benefits not available under the workers compensation regime:
The applicant’s claim for constructive dismissal deserves the opportunity to be tested in the courts. There is no indication that the claim is a colourable attempt by the applicant to skirt the historic trade-off; the claim for constructive dismissal does not appear to be a tort claim in the guise of an employment or contract dispute. The damages sought by the applicant are not benefits available under the Act and represent headings of damage for constructive or wrongful dismissal that have been recognized in Canadian law.
It is noteworthy that while the claim for constructive dismissal was permitted to proceed, Ms. Morningstar’s claims for damages arising from the alleged harassment were not.
e) Arbitrator Slotnick’s Decision
After considering the authorities before him arbitrator Slotnick noted that the key question was how to characterize the substance of the claims made by the union:
Monk contains two important points in considering the issue before me in this case.
First, an arbitrator must look at the substance, not the form, of the claim; a grievance seeking damages that is dressed up as contractual claim, for example, will still be barred by the WSIA if it is a disguised damages claim “for or by reason of” a workplace accident.
Second, however, the WSIA does not preclude a claim for damages based on a violation of a collective agreement or an incorporated statute. As paragraph 109 of the decision says, “Where a claim for damages is made on behalf of a worker who has suffered a compensable injury or illness as a result of the breach [of a collective agreement], they can be awarded in respect of the breach if and to the extent that the worker would have been entitled to them even if she or he had not suffered a compensable injury or illness as a result of the breach.”
The grievor’s request for compensation was based on an allegation that the employer was at fault for not preserving the bat and having it tested for rabies. Arbitrator Slotnick concluded that “the pecuniary losses suffered by [the grievor] and her husband are so intertwined with her accident that it cannot be said they would have any claim for those damages against the hospital were it not for the accident, even assuming a breach of the collective agreement or statute.” While an order for damages to a worker for a breach of the OHSA was within his jurisdiction as an arbitrator, those damages could be ordered only if the nature of the harm to be addressed by those damages for the breach of OHSA or the collective agreement – was not tied to the workplace accident.
The claims for mental stress caused by the failure of the employer to test the bat for rabies, for the disrupted honeymoon, and for the pain and side effects related to the rabies vaccinations were therefore barred by Section 26(2) of WSIA. The only individual claim remaining was the allegation that the employer violated OHSA and the collective agreement by failing to take every precaution reasonable in the circumstances for the protection of the grievor. As for the claims for damages by the union itself, if damages were payable to the union under OHSA or the collective agreement, they could not be tied to the grievor’s workplace accident with the bat; the union would have to establish a violation that was separate and apart from the incident.
f) Conclusion
The story of the bat and the honeymoon is unusual, but this case equally could have involved an employee being unable to travel due to a work related COVID-19 infection, or some other work-related injury. This case provides some helpful guidance for deciding when collateral damage is intertwined enough with a workplace injury to fall within the exclusive jurisdiction of the WSIB. As arbitrator Slotnick’s award is only a preliminary ruling, we will provide an update if there is a subsequent decision.
[1] Ontario (Ministry of Community Safety and Correctional Services) and OPSEU, 2010 CarswellOnt 17779.