FD: FD: DT:D DN: 846/93 STY:Holt Renfrew Canada v. Nicol PANEL: Moore; Jackson; Chapman DDATE: ACT: KEYW: Right to sue (wrongful dismissal).

Transcription

1 FD: FD: DT:D DN: 846/93 STY:Holt Renfrew Canada v. Nicol PANEL: Moore; Jackson; Chapman DDATE: ACT: KEYW: Right to sue (wrongful dismissal). SUM: The defendant in a civil case applied to determine whether the plaintiff's right of action was taken away. The defendant was the employer of the plaintiff. The action was for damages for wrongful dismissal, wrongful retention of goods and a fall resulting from the defendant's negligence. If a person's claim is based on personal injuries suffered in a workplace accident, the person must seek a remedy under the Workers' Compensation Act. If the claim arises out of something other than a workplace accident, the remedy lies outside the Act. A claim for wrongful dismissal will not be barred by the Act unless it is clear that the action is, in reality, a claim arising out of an accident causing personal injury and the remedy sought is of a kind provided by the Workers' Compensation Act. In this case, the claims for damages for wrongful dismissal and wrongful detention of goods were beyond the jurisdiction of the Act. The claim for damages arising out of a workplace accident was barred. Claims for punitive, aggravated and exemplary damages were barred to the extent that they related to the claim regarding the workplace accident. [10 pages] PDCON: TYPE: S. 17 DIST: DCON: Decision No. 28/94 (1994), 29 W.C.A.T.R. 238 distd; Decisions No. 675/88 consd, 200/91 consd, 532/93 apld IDATE: HDATE: TCO: KEYPER: D. Liblong; I. Aiken TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 846/93 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act, R.S.O. 1990, c. W.11, AND IN THE MATTER OF an action commenced in the Ontario Court (General Division) at the City of Toronto as Action No. 93-CQ-31831, B E T W E E N: HOLT RENFREW CANADA Applicant in this application and Defendant in the Ontario Court (General Division) Action, - and - FRANCES NICOL Respondent in this application and Plaintiff in the Ontario Court (General Division) Action.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 846/93 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act, AND IN THE MATTER OF an action commenced in the Ontario Court (General Division) at the City of Toronto, as Action No. 93-CQ-31831, B E T W E E N: HOLT RENFREW CANADA Applicant/Defendant - and - FRANCES NICOL Respondent/Plaintiff WORKERS' COMPENSATION ACT SECTION 17 APPLICATION

4 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 846/93 This application was heard in Toronto on February 8, 1994, by a Tribunal Panel consisting of: J.P. Moore : Vice-Chair, S.L. Chapman: Member representative of employers, F. Jackson : Member representative of workers. THE SECTION 17 APPLICATION This is an application under section 17 of the Act by Holt Renfrew Canada, Defendant in an action commenced in the Ontario Court by the Respondent, Frances Nicol. The Applicant was represented by D. Liblong, a lawyer. The Respondent was represented by I. Aiken, a lawyer. THE EVIDENCE The following were marked as exhibits: Exhibit #1: the section 17 statement of the Applicant; Exhibit #2: the section 17 statement of the Respondent; Exhibit #3: a memorandum from the Tribunal Counsel Office to the Panel, dated December 3, 1993, with attachments; Exhibit #4: a letter from the Tribunal Counsel Office to the parties, dated January 10, 1994, with attachments. The Panel did not hear any testimony. Submissions were made at the hearing by Mr. Liblong and Mr. Aiken. Post-hearing written submissions were completed on March 14, THE NATURE OF THE APPLICATION The application before us arises out of a claim commenced by the Respondent against the Applicant, on January 14, The claim seeks damages for a number of civil wrongs which the Respondent alleges occurred while she was employed by the Applicant. The issue before the Panel is whether the action commenced by the Respondent is one which is barred, in whole or in part, by section 16 of the Act. THE PANEL'S REASONS

5 2 The Respondent began working for the Applicant in In September 1991, the Respondent fell at work. The Respondent alleges that she was injured as a result of that fall. In January 1992, the Respondent was allegedly dismissed from her employment by the Applicant. In January 1993, the Respondent commenced legal action against the Applicant in which she alleged: 1. she was wrongfully dismissed from her employment with the Applicant; 2. the fall which occurred in September 1991 was the result of the negligence of the Applicant; 3. the Applicant wrongfully detained certain property belonging to the Respondent. The Respondent's suit claimed: 1. general damages of $200, for wrongful dismissal; 2. general damages of $500, for negligence; 3. general damages of $5, for wrongful detention of goods; 4. punitive, aggravated and exemplary damages of $500, The claim also sought interest and costs. The Applicant brings this application to obtain a declaration limiting the Respondent's legal action. The Applicant relies on section 16 of the Act. Section 16 reads as follows: 16 The provisions of this Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker or the members of his or her family are or may be entitled against the employer of such worker or any executive officer thereof, for or by reason of any accident happening to the worker or any industrial disease contracted by the worker on or after the 1st day of January, 1915, while in the employment of such employer, and no action lies in respect thereof. The Respondent's claim alleges, among other things: 1. that the Respondent's injuries resulted from the negligence of the Applicant; 2. that the Respondent was forced "against her will to submit to a physical examination by a physician"; 3. that the Applicant did not provide suitable modified work to the Respondent after her injury; 4. that the Applicant wrongfully dismissed the Respondent;

6 3 5. that the Respondent lost wages as a result of the Applicant's actions; 6. that the Applicant refused to allow the Respondent to obtain personal items belonging to her which were on the Applicant's premises. In his submissions, Mr. Liblong argued that those portions of the Respondent's claim which had a nexus with the accident of September 1991 were barred by section 16 of the Act. In Mr. Liblong's submission, only the claim for damages for wrongful dismissal and wrongful detention of goods could proceed. He submitted that the claim for damages for injuries as a result of the Applicant's alleged negligence was barred by section 16. Similarly, any "punitive, aggravated or exemplary damages" which might be awarded by a court by reason of the Respondent's accident fell within the parameters of section 16, and, in Mr. Liblong's view, could not be claimed by the Applicant. Mr. Aiken submitted, on behalf of the Respondent, that the Respondent's right to sue for her injuries should not be taken away until such time as it had been determined by the Board whether or not she was entitled to compensation benefits for that accident. Mr. Aiken argued that the court retains jurisdiction over this aspect of the Respondent's claim until such time as the Board rules that the injury in question was a compensable one. To do otherwise, in Mr. Aiken's view, would deprive the Rspondent of a right to any remedy at all, should the Board eventually deny her compensation benefits. In his submission, this requirement was implicit in the words of section 16, which barred an action "for or by reason of any accident... while in the employment of such employer". In Mr. Aiken's submission, this phrase means that a cause of action is barred under section 16 only where the Responent has a "compensable" injury for which benefits were payable under the Act. As we understand the portion of the Respondent's claim seeking damages resulting from her fall at work, her claim is, of necessity, based on an allegation of an accident which occurred while she was in the employment of the Applicant. Mr. Aiken suggests that the court has jurisdiction over this workplace accident until such time as the accident has been found to be a compensable one under the Act. In the Panel's opinion, Mr. Aiken's reading of section 16 goes beyond what we see as the intent of the section. In the Panel's view, section 16 does not require a determination by the Board as to the compensability of the accident. Rather, section 16 is a statement by the Legislature which stipulates that a worker and members of his family have no right of action for, or by reason of, a workplace accident. As we see it, the Legislature intends that there be two distinct avenues of legal redress. Where there is a civil wrong arising out of something other than a workplace accident, the right of redress is found in the civil courts. However, where there is a civil wrong arising out of a workplace accident, the intended right of redress is found only in the Workers' Compensation Act. The appropriate jurisdiction is determined by that distinction. Where a person has suffered a workplace accident, the law provides an extensive remedy under the Act which that individual may pursue to the fullest extent allowed by the law. However, in our opinion, the Legislature did not intend to provide alternative remedies where there was a workplace accident.

7 4 In our view, if a person's claim against his or her employer is based on personal injuries suffered as a result of a workplace accident, then he/she is compelled to seek a remedy under the Workers' Compensation Act. If, on the other hand, the person alleges a cause of action arising out of something other than a workplace accident, then the remedy lies outside the Workers' Compensation Act. Mr.Aiken's argument also ignores, in our view, the wording of section 17 of the Act, which clearly provides for an application to the Tribunal to decide the right to compensation and whether a cause of action is removed. There is no indication in section 17 that a prior Board determination is needed for the Panel to bar a person's right to sue. We note that several other Tribunal panels have dealt with this problem in other contexts. In Decision No. 532/93 (September 23, 1993), the Panel barred a plaintiff's right of action that was found in the Occupiers' Liability Act of Ontario. In that case, the Panel asked itself the following question, at page 10: Does [subsection 10(9)] seek to prohibit any right of action for damages arising from personal injury in the course of employment, regardless of the nature of that cause of action? The Panel answered that question in the following terms, also at page 10: Where an accident occurs in the course of employment, the historical bargain upon which the workers' compensation system was built, requires that such employers be protected from litigation. There can be no right of action for damages for personal injury under these circumstances. [emphasis added] This Panel accepts the reasoning of the Panel in Decision No. 532/93 that the intent of subsection 10(9) is to bar any action "for damages for personal injury". Similarly, Decision No. 200/91 (June 6, 1991), concluded, at page 6, that the Act "... cannot bar an action unless an alternative remedy is available". At page 7, the Panel stated: However, in the Panel's view, the "riddle" of section 8(9) [now subsection 10(9)] must be solved bearing in mind the general proposition that the statute could not be interpreted to bar an action without clear statutory authority. That proposition was echoed in a third Tribunal decision, Decision No. 675/88. Decision No. 675/88 (November 18, 1988), concluded that what was then subsection 8(9) barred actions for damages for "personal injury" but did not

8 5 bar an action for damages for property damage. In so concluding, the Panel stated, at page 5: In simple terms, the statute cannot bar an action if it does not contemplate an alternative remedy. In the view of the present Panel, a claim for damages for wrongful dismissal is one for which, like a claim for damages for property damage, there is no right of redress under the Workers' Compensation Act. As we understand a claim for wrongful dismissal, it is a claim in which a party seeks damages in lieu of lawful notice prior to termination. In our view, such a claim has nothing to do with "personal injury". The Panel notes that, subsequent to the hearing of this application, a Tribunal decision was issued which is on point. Decision No. 28/94 (February 10, 1994), was sent to the parties for post-hearing comment. The decision took away a worker's action for damages for injury, as well as for damages for wrongful dismissal. In so doing, the Panel stated, at page 12 of the decision: In our view, the simple question we must answer is whether Mr. Gentner's action for damages for wrongful dismissal is "for or by reason of any accident happening to the worker" pursuant to section 16 of the Act. In the limited circumstances of this case, we find that both Mr. Gentner's actions against Robinwood are "for or by reason of any accident happening to the worker". We agree with the Applicant's counsel that in his action for damages for wrongful dismissal Mr. Gentner is doing no more than alleging that, because of the injuries he suffered in the attack of April 1991, (which we have found to have arisen in the course of his employment), he was no longer able to carry out all the duties of his employment. In such circumstances, we consider that this action is one which falls within section 16 of the Act and is therefore statute barred. In the view of the present Panel, that case is distinguishable on the facts. In that case, the Respondent worker actually resigned from his position and alleged that he was compelled to resign because of the effects of his workplace injury. He alleged that the circumstances surrounding his resignation constituted constructive dismissal. We read Decision No. 28/94 as stating that a claim for wrongful dismissal will be barred if it is, in reality, a claim which is based on a workplace accident and is for a remedy which is, in fact, provided by the Workers' Compensation Act. On that reading, we are in agreement with the decision. We note that the Panel, in that decision, was careful to limit its reasoning to the facts of that case. Having said that, we would emphasize that our understanding of a claim for wrongful dismissal is that it is an action for a breach of contract based on a failure by an employer to give adequate notice prior to termination. The civil law of wrongful dismissal, in our understanding, recognizes an

9 6 employer's right to terminate employment but requires that such termination include adequate notice. On the other hand, the purpose of the Workers' Compensation Act is to provide compensation for personal injuries sustained in a workplace accident. The Act also provides certain re-employment rights for workers injured after The law of wrongful dismissal does not recognize a right to re-employment; it recognizes a right to adequate notice prior to termination of the employment contract. Hence, a wrongful dismissal action will not be barred by the Act unless it is clear that the action, in reality, is a claim arising out of an accident causing personal injury and seeks the kind of remedy provided by the Workers' Compensation Act. Similarly, with respect to the claim for damages for wrongful detention of goods, we accept that this is a claim for a remedy not provided by the Workers' Compensation Act. In the present case, the Respondent has three heads of general damages. In our opinion, two of those heads of damages take the Respondent outside the Workers' Compensation Act, while one brings the Respondent within the Workers' Compensation Act. The claim for damages for wrongful dismissal is, in our opinion, one which entitles the Respondent to a remedy that is beyond the jurisdiction of the Workers' Compensation Act and, hence, within the jurisdiction of the civil courts. Similarly, the claim for damages for wrongful detention of goods also falls outside the parameters of the Workers' Compensation Act and within the jurisdiction of the civil courts. On the other hand, we conclude that the Respondent's action for general damages for injuries arising out of a workplace accident is a cause of action which falls clearly within the parameters of section 16 and is, therefore, barred. The Respondent's claim for general damages for injuries arising out the Applicant's negligence is a cause of action based in a workplace accident. Included in this general head of damages would be the claim for loss of wages, due to the Respondent's inability to work, and the failure to provide suitable modified employment after the injury. For that claim the Respondent's remedy must be found within the terms of the Workers' Compensation Act and cannot be provided by the civil courts. Concerning the Respondent's claim for punitive, aggravated and exemplary damages, we are of the view that, to the extent that those damages are associated with the allegations of negligence giving rise to injury, to that extent are they barred by section 16. To the extent that they are associated with the claim for wrongful dismissal or wrongful detention of goods, they are not barred by section 16. The quantification of such damages, and their assignment to the heads of general damages, is something that is best left to the courts. Conversely, any punitive, aggravated, or exemplary damages which a court might later award which have a nexus to the Respondent's workplace accident are caught by section 16 and cannot be claimed by the Respondent. Finally, the Respondent's claim for interest on damages barred by the Act is also, in our opinion, barred by section 16.

10 7 We conclude, therefore, that the Respondent's claim for damages for negligence causing a workplace injury is barred by section 16 of the Act. The claims for wrongful detention of goods and wrongful dismissal do not fall within the ambit of section 16 or of the Workers' Compensation Act and the Panel makes no order concerning the Respondent's right to pursue those claims. THE DECISION The Respondent's right of action is barred to the extent outlined above. DATED at Toronto, this 13th day of June, SIGNED: J.P. Moore, S.L. Chapman, F. Jackson.