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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 3096 17
5/11/2018
R. McCutcheon

  • In the course of employment (takes self out of employment)
  • Sexual assault
  • Right to sue (separate acts of negligence)

The plaintiff in a civil case brought an action against her employer, an executive officer of the employer and her supervisor for damages related to sexual assault and sexual harassment by the supervisor. The employer and the executive officer applied to determine whether the plaintiff's right of action was taken away.
The plaintiff submitted that the allegations in the Statement of Claim did not meet the statutory definition of an accident under the WSIA. The Vice-Chair found that Tribunal case law clearly establishes that sexual assault against a worker in the course of employment is considered to be an accident, in this case a wilful and intentional act of a co-worker against a worker.
The plaintiff submitted that she was not in the course of employment, arguing that the sexual assaults and harassment was not incidental to employment in any way. The Vice-Chair found that Tribunal case law demonstrates that workers who commit intentional physical or sexual assaults take themselves out of the course of employment but that the victims of such assaults at worker are still entitled to claim benefits under the WSIA.
The plaintiff submitted that the defendant applicants were not entitled to protection under s. 26 of the WSIA because of alleged violations of the Occupational Health and Safety Act, regarding maintaining a safe workplace. The Vice-Chair referred to the Supreme Court of Canada decision in Pasiechnyk v. Saskatchewan (Workers' Compensation Board), that the bar to actions against employers is a necessary feature, integral to the workers' compensation scheme. There were no specific allegations that the employer engaged in any criminal or quasi-criminal conduct, to the point where it ceased being an employer. There were also no specific allegations against the executive officer indicating that he acted outside the scope of his employment to the extent that he could no longer be seen to be acting in his capacity as executive officer. The WSIA creates a no-fault insurance scheme. A worker is not removed from the course of employment through acts of negligence or recklessness. There is no basis for applying a different standard with regard to the right to sue an employer or executive officer.
One of the allegations by the plaintiff related to an assault by the supervisor that did not occur in the course of employment. The right of action against the employer and executive officer regarding this allegation was not taken away.
The right of action against the employer and executive officer was taken away with respect to all the other allegations.