Arbitrator May Not Award Damages for Workplace Injury where Worker Entitled to WSIB Benefits

An employee who was entitled to Workplace Safety and Insurance Board benefits for a workplace injury could not also obtain damages through arbitration, a labour arbitrator has decided.

The employee, a track worker with the Toronto Transit Commission, was injured while removing old pieces of “running rail” and replacing them with new ones at the “Wilson Station cross-over”.  He applied for and received benefits from the Workplace Safety and Insurance Board.  He later returned to work in an accommodated position.

The arbitrator held that it was clear that the TTC breached its obligations under the Occupational Health and Safety Act in a number of ways.  The union argued that the employer’s breach of the Occupational Health and Safety Act was also a violation of the “management rights” clause of the collective agreement, entitling the employee to damages for the breach and the injury.

However, the arbitrator stated, section 26(2) of the Workplace Safety and Insurance Act precluded an award of damages in respect of the injury, because entitlement to WSIB benefits was in lieu of all other “rights of action” that the employee had against the employer by reason of the accident.  In effect, the employee was entitled to the WSIB benefits only, not to any other damages from the employer.

Amalgamated Transit Union, LOCAL 113 v Toronto Transit Commission, 2012 CanLII 97799 (ON LA)

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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