Due to a new decision by the Ontario Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), an employee in Ontario cannot sue his or her employer for constructive dismissal, if the reason the employee was forced to leave his or her employ was due to chronic mental stress, caused by workplace bullying, harassment or other toxicity in the workplace. 

The employer brought an application to the WSIAT, after it had been named in a civil suit alleging constructive dismissal. Under Ontario law, an employer subject to the provisions of the Workplace Safety and Insurance Act, 1997, may apply to the WSIAT for a determination of whether the employee has a right to sue.

The Plaintiff employee had resigned her position with the employer in February 2018 claiming constructive dismissal as a result of harassment and bullying in the workplace. She filed a Statement of Claim in the Ontario Superior Court of Justice on April 2, 2018, claiming damages for constructive dismissal, bullying, harassment and/or a poisoned work environment pursuant to the Occupational Health and Safety Act (the “OHSA”), the tort of harassment, as well as punitive, aggravated and/or moral damages. Of note, she claimed she “was forced to resign from her position with [the Applicant] due to the harassment, bullying and abuse she endured during the course of her employment and the resulting mental distress she experienced and continues to experience.” She also asserted that her claim “relates to the harassment and bullying that [she] experienced as a result of a toxic work environment created by [the Applicant’s] employees and management and her subsequent constructive dismissal.”

The WSIT held, in part:

“[29] … I note that generally the Tribunal has found that the right to bring an action for wrongful dismissal has not been removed by the WSIA. It is only in the exceptional case that this is not so, where the circumstances of the wrongful dismissal claim are inextricably linked to the work injury. See, for example, Decisions No. 3836/17, 1319/01 2, and 566/00.

[30] In my view, that exception applies here. The Respondent’s action against the Applicant is not for wrongful dismissal in the usual sense, but rather is for constructive dismissal, meaning her employment was effectively terminated by the harassing and bullying conduct of co-workers and management which caused her mental distress to such a degree that she was forced to take sick leave and ultimately to resign. I find that these facts, if proven, are inextricably linked to a claim for injury governed by the terms of section 13(4) of the WSIA, as cited above. In other words, I find that the worker’s Statement of Claim is, in essence, a claim for injury resulting from alleged workplace harassment and bullying and thus is within the scope of section 13(4) as amended to provide for entitlement for chronic mental stress arising out of, and in the course of, the Respondent’s employment. Moreover, I find that the other remedies sought by the Respondent are also claimed on the same facts, of harassment and bullying in the workplace. Accordingly, I find the worker’s right of action is taken away by the WSIA, pursuant to section 26 in this case.”

Therefore, if your employer is subject to WSIB enrollment, currently you have no right to sue your employer for being forced to quit or resign due to mental stress you experience in the workplace caused by bullying, harassment and/or other toxic indicia, including those caused by your co-employees. 

The Case:

Morningstar v. Hospitality Fallsview Holdings Inc. (Decision No. 1227/19), 2019 ONWSIAT 2324 (CanLII)

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