No Second-Hand Smoke Damages under Safety Clause of Collective Agreement: Ontario Court

The Ontario Divisional Court has upheld an arbitrator’s decision that a collective agreement provision requiring the employer – two Ontario government ministries – to take reasonable safety precautions could not be used to award damages for occupational diseases.

The collective agreement provision stated:

“The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.”

The union filed approximately 235 grievances between 1991 and 2008 against the Ministry of Community and Correctional Services and the Ministry of Children and Youth Services  alleging that exposure to second-hand smoke, particularly in correctional facilities, violated the collective agreement provision and entitled the employees to damages.

The arbitrator decided, and the court agreed, that subsection 26(2) of the Ontario Workplace Safety and Insurance Act, which provides that entitlement to benefits from the Workplace Safety and Insurance Board “is in lieu of all rights of action . . . against the worker’s employer . . . for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer”, barred a claim for damages under the collective agreement for an occupational disease – here, health issues from exposure to second-hand smoke.

The end result was that the collective agreement safety provision required the employer to take reasonable safety precautions, but employees could not get damages under the collective agreement for a breach of that clause that resulted in an occupational disease.  As such, the union’s claim for damages was dismissed.

This case demonstrates that employees whose employer is registered with the Workplace Safety and Insurance Board and who claim to have suffered an occupational disease, must claim damages from the WSIB and not from the employer under a collective agreement.

OPSEU v. Ontario et al, 2012 ONSC 2348 (CanLII)


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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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