WCB’s exclusive jurisdiction does not bar an employee from bringing a constructive dismissal claim that results from bullying or harassment in the workplace.
In Deol v Dreyer Davison LLP, 2020 BCSC 771, the plaintiff alleged that she was subjected to sexually harassing behaviour in the workplace. As a result, the plaintiff left the employment and sued for constructive dismissal.
The defendant argued that the plaintiff’s constructive dismissal claim should be struck out on the basis that it was statutorily barred by BC’s Worker’s Compensation Act (which generally has exclusive jurisdiction over injury claims arising in the workplace).
Section 10(1) of the Act (now s. 127) prevents an employee from suing their employer for personal injury arising out of and in the course of employment, while section 96(1) (now s. 122(1)) gives WCB exclusive jurisdiction to hear and determine such matters. And section 5.1(1) (now s. 135(1)) expands WCB’s scope to include claims related to mental disorders that are predominantly caused by significant work-related stress, including those caused by bullying or harassment.
The Court agreed that the Workers’ Compensation Board (“WCB”), rather than court, is the proper venue to bring claims directed towards compensation for injuries arising out of and in the course of employment (including injuries arising from bullying and harassment). The Act bars such claims being brought to court. The Court held that aspects of the plaintiff’s claim seeking damages for personal injury suffered as a result of the alleged harassment should be struck.
But the Court did not agree that the Act goes so far as to bar the plaintiff’s constructive dismissal claim for pay in lieu of reasonable notice. While the Act may bar claims that seek damages for personal injury, damages for a constructive dismissal claim are distinctly different. Constructive dismissal damages fall squarely within the Court’s jurisdiction:
 General damages for breach of an employment contract stand in place of reasonable notice and are distinct from damages for personal injury. They fall within this Court’s jurisdiction. They are not within the jurisdiction of the WCB. Therefore, the general damages claimed by Ms. Deol, and the basis for those damages, are not within the jurisdiction of the WCB.
This decision provides welcome clarity in BC, especially after a 2019 Workplace Safety and Insurance Appeals Tribunal decision held that a constructive dismissal claim in Ontario was statutorily barred under the Workplace Safety and Insurance Act.