Written By Christine Plante, Michael VanderMeer and Celina Glabus
Canadian workers' compensation regimes are defined by the "historic tradeoff"—workers gain immediate and consistent benefits coverage under mandatory, no-fault statutory insurance schemes funded by employers and, in exchange, give up their right to sue employers for workplace accident and injury claims.
Here, we examine how the statutory bar is applied to civil claims for damages arising from bullying, harassment, discrimination and violence in the workplace. Canadian courts have developed a fairly consistent approach to dissecting such actions to identify what elements of the claim may proceed and to remove the parts of the claim that are based on workplace accidents or injuries and are subject to the historic tradeoff.
The Ashraf Framework
This issue was first squarely addressed in the Alberta decisions of Ashraf v. SNC Lavalin ATP Inc. In 2013, the Alberta Court of King's Bench struck the worker's civil action against his employer for workplace bullying and harassment because he had already received compensation for the alleged conduct under the provincial workers' compensation regime. The worker then sought to amend his claim to include damages for constructive dismissal (i.e., a breach of the employment contract). The Alberta Court of Appeal ultimately allowed the worker to proceed with his constructive dismissal claim, while maintaining the lower court's decision to strike out the worker's claims for damages relating to alleged physical and psychological injuries experienced at work.
This decision drew an important distinction between the worker's claims for contractual damages (i.e., wrongful or constructive dismissal), which were permitted to continue, and the worker's claims for physical and psychological damages caused by the same alleged workplace conduct, which were barred by the applicable workers' compensation legislation. This distinction has continued to be applied by courts and tribunals in the 10 years post Ashraf.
Consistent Approach Post Ashraf
Courts and tribunals alike have continued to uphold the distinction drawn in Ashraf between claims based on the breach of a workplace contract and claims based on injuries experienced in the workplace, allowing the former and barring the latter.
For instance, in the 2020 British Columbia decision in Deol v. Dreyer Davison LLP, the British Columbia Supreme Court struck out the worker's damages claim for personal injuries relating to an alleged workplace sexual harassment, deferring those claims to the jurisdiction of WorkSafeBC, but allowed the worker to pursue her breach of contract claim for damages relating to her asserted constructive dismissal.
A similar result was determined in the 2021 Ontario decision in Morningstar v WSIAT. The worker claimed that she was forced to resign her employment due to workplace bullying and harassment. The court permitted the worker to sue her employer for damages relating to her constructive dismissal claim, as well as for aggravated, moral, and punitive damages relating to the manner of that dismissal, but confirmed that an action for personal injury would be barred by the provincial workers' compensation legislation.
Likewise, the Alberta court in the 2018 decision in LL v. Canadian Natural Resources Ltd. struck parts of the worker's claim relating to damages and loss of income arising from an alleged workplace sexual harassment and abuse, explaining that the plaintiff's exclusive remedy for such alleged personal injuries rests with the workers' compensation regime.
Overall, Ashraf and the cases that follow outline a consistent approach that courts and tribunals will follow when dealing with overlapping civil and statutory claims that are based on allegations of workplace bullying, harassment, discrimination, and violence. Key principles include:
- workers' compensation regimes have exclusive jurisdiction over personal injury claims relating to workplace accidents and injuries, including physical and psychological injuries arising from incidents of workplace bullying, harassment, discrimination and violence;
- physical and psychological injuries experienced by a worker as a result of bullying or harassment in the workplace may be compensable under workers' compensation legislation;
- workers are still permitted to bring civil claims for damages based on breach of contract (e.g., if the alleged workplace misconduct resulted in the worker leaving employment and claiming constructive dismissal); and
- there are variances in the scope of coverage and statutory bars provided under each province's and territory's workers' compensation regime, which has a corresponding impact on what types of civil claims may be brought in those jurisdictions.
In responding to a civil claim that is based on an alleged accident or injury that occurred in the a workplace, employers should look carefully at the underlying factual basis for each cause of action to assess whether all or part of the claim is properly within the scope of the applicable workers' compensation regime and therefore statute-barred.
If you are facing a claim, members of the national Bennett Jones Employment Services group are pleased to discuss with you the distinction between claims for work-related personal injury and claims for constructive or wrongful dismissal and how to respond to each.