In Morningstar v WSIAT, 2021 ONSC 5576, the Ontario Divisional Court concluded that the WSIAT had been unreasonable when it determined the worker was statute barred from pursuing her civil claim for constructive dismissal. Rather than remitting the matter back to the Tribunal for determination, the Court ordered that the applicant be permitted to pursue her constructive dismissal claim and related damages in the Superior Court.
The worker, Ms. Morningstar, worked in housekeeping at the Hilton in Niagara Falls. She is a survivor of uterine cancer. For a period of about two years, her colleagues harassed her, alleging she had an “odour” and that she was incontinent. Her colleagues would spray her with Lysol, cover her chair with towels and bathmats and make other rude and demeaning comments.
Ms. Morningstar complained to management, who ignored her pleas for help. Instead, management participated in the harassment, suggesting she should use feminine hygiene products and wash her uniform. Management also forced Ms. Morningstar to apologize to her abusers and told her to work “more cohesively” as a team member. As a result of this abusive conduct, Ms. Morningstar was forced to go on leave.
Ms. Morningstar eventually complained to the Ministry of Labour. The MOL ordered that the Hilton retain an independent investigator to conduct another workplace investigation. This investigator determined that Ms. Morningstar had indeed been harassed. Following the results of this investigation, Hilton requested that Ms. Morningstar return to work, where she would be required to work with the same manager and alongside the same abusers. Ms. Morningstar refused, asserting that Hilton had constructively dismissed her.
Ms. Morningstar then filed suit against the Hilton in April 2018, alleging constructive dismissal, breaches of the Occupational Health and Safety Act and Employment Standards Act, the tort of harassment and/or for a poisoned work environment. She also sought aggravated, moral, and punitive damages. Counsel conceded before the divisional court that the harassment and other claims were properly barred under s. 31 of the Workplace Safety and Insurance Act, thus the only claims under consideration were the constructive dismissal claim and related damages.
In August 2018, the Hilton applied to the Workplace Safety and Insurance Appeals Tribunal, alleging that Ms. Morningstar was barred from bringing her civil claims against Hilton by virtue of the Workplace Safety and Insurance Act.
The WSIAT agreed with the employer, reasoning that the facts that grounding Ms. Morningstar's constructive dismissal claim were related to a workplace injury, and thus her civil claim should not be permitted to proceed. Ms. Morningstar applied for a reconsideration of this decision, but was unsuccessful.
The Divisional Court Decision
The Court applied the standard of reasonableness, and found that the Tribunal’s decisions had been unreasonable. The Court explained that the Tribunal had improperly applied the “inextricably linked” test to the facts in determining (twice!) that because facts set out by the applicant were “inextricably linked” to the workplace injury, that her her action for constructive dismissal was therefore barred.
This is an unreasonable determination because it focused on the facts of the accident rather than on the legitimacy of the cause of action for constructive dismissal or on the availability of benefits under the Act. The Court concluded that while “an action for personal injury can properly be barred by the Act…it would appear to be unreasonable to bar an action for constructive dismissal simply because the same facts that relate to that action also incidentally support an action for personal injury.” The Court continues at paragraph 94:
Such a test ignores Canadian law permitting different causes of action to be advanced on the same facts. To focus on the facts as linked to the workplace accident, but to disregard both the claim for constructive dismissal in its own right and the nature of the benefits sought in the action, arrogates to the WSIAT more authority than was ever intended to be granted to it. The policy behind the Act and the wording in ss. 26, 28, and 31 of the Act require more analysis than a test involvement mere ‘factual linkage’ permits.
The Court continues at paragraph 95:
It is well-established in Canadian law that the same facts can support concurrent liability in more than one cause of action. A plaintiff has the right to assert alternative causes of action that offer advantageous legal consequences unless the plaintiff thereby improperly attempts to avoid some limitation of liability by so doing: Central Trust Co. v. Rafuse,  2 S.C.R. 147, at paras. 48-54. As the general run of WSIAT cases acknowledge, so long as a plaintiff does not sue in constructive dismissal improperly to get around the limitations of the Act, the claim should be permitted to proceed, even where tort aspects of a claim are barred. Contrary to the reasoning of other WSIAT decisions in which claims in contract are barred, nowhere in the decisions under review is there any assertion that the applicant is attempting to disguise her injury claim as one sounding in constructive dismissal in order to avoid the limitations of the historic trade-off.
The Divisional Court concluded that Ms. Morningstar's civil claim for constructive dismissal should be allowed to proceed. Normally, it would have remitted the matter back to the Tribunal for consideration. However, "a proper consideration of the issues of this case must inevitably lead to the conclusion that the applicant's action in constructive dismissal and her claims for aggravated, moral and punitive damages must be permitted to proceed."