Workplace Safety and Insurance Appeal Tribunal Renders Action for Constructive Dismissal Statute Barred


Ms. Morningstar was employed by Hospitality Fallsview Holdings Inc.. While still employed, Ms. Morningstar filed a human rights application alleging discrimination on the basis of sex and disability.

Shortly after filing the human rights application, Ms. Morningstar resigned from her position claiming constructive as a result of the harassment and bullying she allegedly experienced in the workplace. Ms. Morningstar then filed a Statement of Claim with the Ontario Superior Court claiming that she:

[W]as forced to resign from her positon due to the harassment, bullying and abuse she endured during the course of her employment and the resulting mental distress she experienced and continues to experience.[1]

While the Statement of Claim did not explicitly seek a human rights remedy, the damages sought were very similar to the remedies available in the Ontario Human Rights Code.

The HRTO Dismisses the Application

During the HRTO proceeding, the employer requested that the Tribunal dismiss the application pursuant to section 34(11) of the Code. Section 34(11) essentially precludes the HRTO from assuming jurisdiction over an application where the applicant has commenced a civil proceeding with respect to the same alleged Code infringement.

Ultimately, in Morningstar v. Hospitality Fallsview Holding Inc. (o/a Hilton Fallsview) the HRTO dismissed the application and held that the facts and issues alleged in the employee’s Statement of Claim were the same as those raised in the application; that the employee’s alleged Code infringements were not separate or distinct from her constructive dismissal claim, and that although the employee did not explicitly seek a remedy under section 46.1 of the Code, the application and the civil claim raised substantially the same allegations, and the damages sought were similar to those available under section 46.1 of the Code.[2]

The Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) Rules Action is Statute Barred

Following the Tribunal’s decision, the employer brought a “right to sue” application under section 31 of the Workplace Safety and Insurance Act (“WSIA”) seeking an order that the employee’s civil suit be declared statute-barred as it was effectively a claim for a chronic mental stress injury arising out of her employment. Claims of workplace chronic mental stress are now captured and compensable under WSIA.

In Decision No. 1227/19[3] the WSIAT agreed with the employer’s position and found that the civil action was in essence a workplace chronic mental stress claim. In noting that the right to bring an action for wrongful dismissal had not been removed by WSIA, except for in exceptional circumstances where the claims of wrongful dismissal are inextricably linked to the work injury, the WSIAT found that the exception applied to the case at hand.

The Respondent’s action against the Applicant is not for wrongful dismissal in the usual sense, but rather is for constructive dismissal, meaning her employment was effectively terminated by the harassing and bullying conduct of co-workers and management which caused her mental distress to such a degree that she was forced to take sick leave and ultimately to resign.[4]

Ultimately, the WSIAT found the fundamental nature of the Respondent’s action was a claim for injury resulting from harassment and bullying in the workplace and is therefore statute barred.[5]

Employer Takeaways

Given the above, employers should consider whether cases alleging workplace harassment and bullying are more appropriate under the WSIA regime. In the event an employer determines that a case more appropriately belongs under the WSIA regime, employers should ensure they understand the WSIA process and consider whether a “right to sue” application is appropriate.

If you have any questions regarding the above, please do not hesitate to contact one of the members of our Labour & Employment group.

[1] 2019 ONWSIAT 2324, para 3.

[2]Morningstar v. Hospitality Fallsview Holding Inc. (o/a Hilton Fallsview), 2019 HRTO 1222, para 12.

[3] 2019 ONWSIAT 2324.

[4] 2019 ONWSIAT 2324, para 30.

[5] 2019 ONWSIAT 2324, para 39.


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