An employee who is entitled to Workplace Safety and Insurance Board (WSIB) benefits cannot also obtain damages through arbitration, a labour arbitrator has found.
The Toronto Transit Commission (TTC) track worker was injured while removing rails. He applied for and received benefits from the WSIB and returned to work in an accommodated position.
The union argued that the employer’s breaches of the Occupational Health and Safety Act (OHSA) violated the “management rights” clause of the collective agreement, thereby entitling the employee to damages for the breach and the injury.
The Ontario Labour Board arbitrator found that, while the TTC breached its obligations under OHSA, Section 26(2) of the Workplace Safety and Insurance Act precludes an award of damages in respect of the injury. Entitlement to WSIB benefits is in lieu of all other “rights of action,” including any other damages.
Amalgamated Transit Union, LOCAL 113 v Toronto Transit Commission, 2012 CanLII 97799 (ON LA)
Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sch A