In Garrity v Richmond Kinsman Home Support Society ( 2016 BCSC 2204) Justice Pearlman was faced with a plaintiff who claimed that she was constructivley dismissed because of bullying and harassment by a co-worker.
She plead the case as follows :
16. As a result of the Incident, the Defendant’s failure to respond to the Incident, the issuance of the baseless disciplinary letter and the formal demeaning directive, the Plaintiff suffered physical and emotional stress resulting in her taking sick leave on or around January 18, 2016.
18. As a result of the actions and inactions of the Defendant, and the resultant effect on the Plaintiff’s health, the Plaintiff’s Employment was repudiated by the Defendant.
The Defendant took the creative position that as the plaintiff was an employee claiming that she had suffered an injury in the workplace caused by another employee that the BC Workers’ Compensation Act provided that the Workers’ Compensation Tribunal Appeal Tribunal had exclusive jurisdiction over the issue and therefore no Court could hear the case.
The Court agreed and ordered a stay of the civil lawsuit until such time as the Tribunal had ruled on whether or not they had exclusive jurisdiction over the matter.
Although this is BC case, the Ontario Act has similar provisions, so the result could easily be the same.