In our most recent post, we reviewed the complexity of navigating the law when it comes to workplace abuse, given the fact that workers’ compensation coverage often acts to prohibit related civil claims.

A good example of the application of this issue was a case that came from Alberta in the City of Calgary vs. Canadian Union of Public Employees, Local 38.

All Alberta employees are covered by workers’ compensation. The female applicant in the case at hand claimed emotional damages for sexual harassment and assault, as well as a claim for lost past and future income. She was successful in her claim, which totalled over $800,000. The defence failed to put forth an argument for a mandated workers’ compensation claim, which would likely have been a full defence.

Human Rights Claims Exempted

While the statute allowing for workers’ compensation benefits prohibits civil actions alleging workplace abuse, its reach does not, to date, extend to claims brought before the Ontario Human Rights Tribunal.

The statute bans an “action” which has been interpreted to exclude a human rights complaint. It is not clear whether this definition of “action” applies only to a human rights remedy brought directly to the Tribunal or whether its exemption may also apply to a civil “action” brought to enforce a human rights remedy. An applicant would be wise to proceed cautiously.

No Double Dipping

Where the statute does apply and the claim is brought before the workers’ compensation tribunal, disability insurance benefits will be deducted from the workers’ compensation award. In a civil or human rights complaint, it is arguable that these benefits ought not to be deducted from a lost income claim where it may be shown that the employee directly or indirectly contributed to the cost of the insurance premiums.

Claims Against a Personal Offender

A summary of the law on this issue is that a civil action will be permitted against the alleged offender in their personal capacity, provided that the personal defendant was not acting in an employment-related capacity and also that the employer itself had not condoned or accepted a lesser standard of workplace conduct. The particular case referenced involved an allegation that the personal defendant had massaged the plaintiff’s shoulders in a manner that caused her emotional and physical pain. The wrongdoing occurred in the course of employment but was not seen as within proper working conditions and hence the wrongdoer was not acting in an employment-related capacity. This case was based on the allegations in the claim, not on proven evidence.

Take Away to Both Sides

The law on this subject is obviously quite complex and is still in a developmental stage. Any party involved in such a dispute would be wise to consider alternative pleas to best support their respective positions as the law on this topic unfolds. Further, seek the counsel of an experienced employment lawyer, as up-to-date advice on navigating this process will be crucial.

Get Advice and Know Your Rights

For guidance on his issue, and indeed, on and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.