The Crown in Right of Ontario v. The Grievance Settlement Board
The Ontario Court of Appeal has issued a very important decision for unionized Ontario employers in both the public and private sectors. The decision is called OPSEU v Ontario and is an appeal of a judicial review decision of an Ontario Grievance Settlement Board (GSB) arbitration decision. The GSB is the body that performs the functions of the OLRB for the Government and its unions. The case holds that an arbitrator cannot award damages under a collective agreement if the worker’s injuries or disease are compensable under the WSIA or the predecessor WCA.
The facts are that the Union filed some 235 grievances between 1991 and 2008 on behalf of government workers who were concerned about exposure to second-hand cigarette smoke in correctional facilities. The grievances claimed unspecified damages for alleged violations of the Health and Safety Provisions of the current and prior collective agreements. The parties agreed that the Vice-Chair should determine if he had jurisdiction to award the grievors compensation for their alleged injuries or any other remedy.
The Vice-Chair considered the arguments and rejected the Union's argument that the WCA and WSIA restrictions only applied to tort and not to contract claims that are made under a collective agreement. The arbitrator stated that the historical trade-off embodied in the two Acts was that the employer's contributions to the compensation fund [the niceties of the Sch 1 and 2 distinctions seemed to have been missed] protected the employer from liability for compensable workplace injuries. Whether pleaded in tort or in contract, the substance was the same. The Vice- Chair concluded that the GSB could not award damages under the relevant collective agreements for compensable injuries to which the WCA and WSIA would have applied.
This Union sought judicial review and lost:
 The Vice-Chair did not find that supplemental benefits were precluded by the WCA or the WSIA or that the parties could not contract for additional benefits beyond that provided by the WCA and WSIA insurance scheme. His conclusion was that a fault-based claim for compensable injuries was foreclosed as it was inconsistent with the historic trade-off but the Vice-Chair accepted that, for instance, no-fault supplemental benefits are permitted. However, clear and careful language was required to accomplish this objective in the collective agreement.
 It was neither unreasonable nor incorrect for the Vice-Chair to determine that clear and careful language must be used in a collective agreement to provide for compensation that supplements WCA and WSIA benefits for workers with compensable injuries. As noted by the respondent, this is not a novel concept.
The relatively short Court of Appeal decision (7 paragraphs) upheld the Divisional Court. The gist of the decision follows:
 The Divisional Court concluded that whether the standard of review applied was reasonableness or correctness, the judicial review application should be dismissed. It found that the decision of the Vice-Chair was thorough and carefully considered, logical and intelligible, justifiable and transparent. We agree. In our view, it makes no difference whether the claim is framed in tort or in contract. It is the substance of the claim that matters. The Vice-Chair was correct in his conclusion that the Board could not award damages under the collective agreement for compensable injuries to which the WCA or the WSIA would have applied
This case may go the Supreme Court but until that happens the Court of Appeal decision is the current law in Ontario. Although the case deals with an Ontario public sector collective agreement, its principles should apply equally to private sector agreements. Employers working with collective agreements should no longer be confronted with a worker who has a WSIB claim and also or alternatively tries to claim damages for breach of his health and safety entitlements under the collective agreement.
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