In previous posts, we reviewed the impact of workers’ compensation entitlement upon a civil action which is founded on alleged workplace wrongdoings.

For example, a claim made by a worker such as sexual assault an employment setting, would likely not be allowed where the employee is covered by the workers’ compensation plan. That is an important issue, as roughly 70% of Ontario’s working population has this coverage.

Pros & Cons

There are advantages of workers’ compensation, as the entitlement to benefits is a “no-fault” scheme. There is no need to prove liability.

There are also real disadvantages. There will not be a finding of wrongdoing against the alleged offender or the company. Workers’ compensation does not allow for actual reinstatement, nor does it provide for compensation damages for injured feelings. The claim for lost earnings is limited to the period of disability, unlike a human rights complaint which is based on lost income from termination to the date of the hearing and even beyond.

In a fact situation in which the apparent wrongdoing is based on a human rights violation, such as sexual harassment, the victim, when covered by workers’ compensation, would be well advised to consider the remedy of making a human rights complaint as opposed to a civil tort claim such as assault, battery or the intentional infliction of mental distress, to name the more popular of the tort claims.

The Ontario Law

The reason for this is that human rights remedies are not likely precluded where workers’ compensation is in place.

Section 31 of the Ontario statute states as follows: (highlighting added)

(1) A party to an action or an insurer from whom statutory accident benefits are claimed under section 268 of the Insurance Act may apply to the Appeals Tribunal to determine,

(a) whether, because of this Act, the right to commence an action is taken away;

(b) whether the amount that a person may be liable to pay in an action is limited by this Act; or

(c) whether the plaintiff is entitled to claim benefits under the insurance plan.

The sole case dealing with this issue is a WSIA Appeals Tribunal decision[1] which interpreted its statute to define “action” to be only a civil claim and not a human rights complaint. There are no contrary decisions.

Generally, human rights legislation is considered quasi-constitutional and as such, supersedes any conflicting statute, unless specifically stated to the contrary in the human rights enabling legislation.[2]

Apart from the quasi-constitutional status argument, the human rights process does deal with broader issues from a public interest perspective and includes other forms of non-monetary relief, including reinstatement, which is not available by a workers’ compensation claim.

It seems likely that this decision of the Appeals Tribunal, which did not consider these higher level public policy arguments, will be upheld, if challenged.


Consider the Remedy

The law on this subject is somewhat complicated. An employer may wish to challenge the right of the employee to bring a human rights remedy in this context. If so, it will be an expensive proposition as such an argument is sure to be met with institutionally funded objections from the Human Rights Commission and other public interest groups.

From the employee’s perspective, the individual must know the alternative remedies available and be able to make an educated decision as to which avenue should be pursued. It is clear that an employee, covered by workers’ compensation, facing a decision as to whether to sue in tort or proceed by a human rights complaint, in for example a sexual harassment case, would be well advised to proceed by the administrative remedy.

Get Advice

Contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. 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.

[1] Decision No. 194/16

[2] This principle was stated quite clearly in 2008 by the Nova Scotia Court of Appeal in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission).