Arbitrator finds Ontario workers’ compensation legislation does not bar Anti-Black Racism grievance
In a Goldblatt Partners win, a labour arbitrator ruled that a grievance addressing an anti-Black racist and sexist incident in the workplace could proceed even though the grievor had filed a successful Workplace Safety and Insurance Board (“WSIB”) claim related to the same events.
Background
The grievor is an elementary school teacher and a Black woman. She received a harassing package at work containing anti-Black racist and sexist content, including offensive language that was clearly visible on the outside of the package. The union filed a grievance alleging that the employer had violated the collective agreement, the Human Rights Code (“Code”), and the Occupational Health and Safety Act (“OHSA”) and seeking remedies including general damages. The grievance asserted that the vice-principal had initially been in possession of the package but failed to flag or isolate it, failed to properly investigate or provide support to the grievor, and contributed to an unsafe, discriminatory, and hostile work environment. The employer later disclosed at the hearing that the vice-principal’s credit card had been used to purchase the package (the employer alleged that the vice-principal was a victim of fraud).
The grievor also filed a successful claim for WSIB benefits due to the psychological effects of this incident. This incident was considered to be a “workplace accident” for purposes of the WSIB system. The employer brought a preliminary motion to dismiss the grievance, arguing that the union’s claims fell within the exclusive jurisdiction of the WSIB based on the “historic trade-off” of the right to sue employers in court in exchange for the no-fault workplace insurance system. Arbitrators have previously found that this trade-off barred other grievances seeking damages for workplace accidents where the employee claimed or could have claimed WSIB benefits. The employer also argued that the WSIB had already decided the substance of the case by accepting that the grievor experienced a work-related “mental stress injury” as a result of the package incident.
The Decision
Arbitrator Daniel Randazzo dismissed the employer’s preliminary motion. He explained that an arbitrator must review the substance of a grievance to determine if it is “for or by reason of” a workplace accident and is therefore barred by the Workplace Safety and Insurance Act, 1997 (“WSIA”). In this case, while the grievor had experienced a workplace accident for which she received WSIB benefits, the substance of the grievance was instead the employer’s alleged breaches of the Code and the OHSA. These statutes have different purposes from the WSIA, breaches are not compensable through the WSIB, and they are not captured by the historic trade-off. As he summarized at paragraph 36:
36. In my view, the Employer’s position suggesting that the factual basis for the Union’s grievance is limited to the Grievor’s injury is to trivialize her claim. Violations of the Code and OHSA are not part of the historic trade off; the right to a safe workplace and the right to a discrimination free workplace were not traded away under WSIA. To lump the Grievor’s claim of the loss of dignity and the right to work in a safe and discrimination free workplace into a WSIA claim for benefits offends the purpose of both the Code and OHSA. This is not a “hair splitting” exercise but a recognition that claims under the Code and OHSA are not equivalent to claims for benefits under WSIA.
Arbitrator Randazzo also rejected the employer’s argument that the WSIB proceeding had already dealt with the substance of the grievance. He found that the WSIB had not considered the Code or OHSA issues as this was not part of its mandate.
Takeaways
This case counters a trend where some arbitrators have taken an overly broad view of the WSIB’s jurisdiction over damages claimed at grievance arbitration. Where a grievance potentially overlaps with a WSIB claim, it will be necessary to assess the substance of the grievance on a case-by-case to determine if it arises “for or by reason of” a workplace accident. However, Arbitrator Randazzo endorses the principle that the WSIB system was not intended to replace employee protections under Ontario’s human rights and occupational health and safety laws. The historic trade-off does not mean that employees should be left without meaningful remedies, including monetary damages, for breaches of these important workplace rights.
You can read the decision here: Toronto District School Board v Elementary Teachers’ Federation of Ontario, 2026 CanLII 1589 (ON LA).