



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario Public Service Employees Union v. Ontario
    (Community Safety and Correctional Services), 2013 ONCA 406

DATE: 20130614

DOCKET: C56541

Winkler C.J.O., Rouleau and Hoy JJ.A.

BETWEEN

Ontario Public Service Employees Union

Appellant

and

The Crown in Right of Ontario (as represented by
    the Ministry of Community Safety and Correctional Services and the Ministry of
    Children and Youth Services)

Respondent

and

The Grievance Settlement
    Board

Respondent

Richard A. Blair and Christopher Bryden, for the
    appellant

Malliha Wilson, Christopher P.
    Thompson, Jennifer Richards and Robert Fredericks, for the respondent the Crown
    in Right of Ontario

Heard and released orally: May 29, 2013

On appeal from the order of the Divisional Court (Justices
    James C. Kent, Robert R. Jennings and Sarah E. Pepall), dated September 11,
    2012, with reasons reported at 2012 ONSC 2348, 296 O.A.C. 373, dismissing an
    application for judicial review of a decision of the Grievance Settlement
    Board, dated April 29, 2010.

ENDORSEMENT

[1]

The Union filed some 235 grievances between 1991 and 2008 on behalf of
    employees of the Ministry of Community and Correctional Services and the
    Ministry of Children and Youth Services concerning 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.

[2]

The parties agreed that the Grievance Settlement Board should determine
    the preliminary issue of whether it was precluded from granting the grievors
    compensation for their alleged injuries or any other remedy. The employer
    relied on the wording of the Health and Safety Provisions in the agreements, s.
    16 of the
Workers Compensation Act
,
    R.S.O. 1990, c. W.11 (
WCA
),
and s. 26 of the
Workplace Safety and Insurance Act
, S.O. 1997, c. 16 (
WSIA
)
. It argued that the Board had no
    jurisdiction to consider fault-based claims pertaining to compensable injuries
    as defined under those Acts and the grievances therefore had to be dismissed.

[3]

The Vice-Chair rejected the Unions argument that the
WCA
and
WSIA
restrictions only applied to tort and not to contract. He observed that the
    historical trade-off embodied in the two Acts was that the employers
    contributions to the compensation fund protected it from liability for
    compensable workplace injuries. Whether pleaded in tort or in contract, the
    substance was the same. The Vice-Chair concluded that the Board could not award
    damages under Articles 9.1 and 18.1 of the relevant collective agreements for
    compensable injuries to which the
WCA
and
WSIA
would have
    applied.

[4]

As explained by the Vice-Chair, at para. 107:

This Board cannot award a grievor damages 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 if the alleged accident or disease
    is or was compensable under the
WCA
or
WSIA
.

The Vice-Chair went on to explain, at para. 111:

The proper question is whether an injury or illness of the sort
    alleged by the grievor would be or would have been compensable under the
    applicable statute
if proven
.

[5]

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.

[6]

The Union also takes issue with the Divisional Courts endorsement of
    the Boards comment that clear and careful language is needed in a collective agreement
    if it is to provide for compensation that supplements
WCA
and
WSIA
benefits for workers with compensable injuries. We view this comment as
obiter
given the issues before the Board, and the outcome. Accordingly, it is in our
    view unnecessary to address this additional issue.

[7]

As a result, the appeal is dismissed.

W. Winkler C.J.O.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.


