Toronto, ON — February 18th, 2026 — In a recent decision, Toronto District School Board v Elementary Teachers’ Federation of Ontario, 2026 CanLII 1589 (ON LA) (“TDSB”), the arbitrator dismissed the TDSB’s motion to have the grievance dismissed for lack of jurisdiction given that the facts of the grievance were the same as those relied on to file a Workplace Safety and Insurance Board (“WSIB”) claim. On its face, this decision seems contrary to the finding in Peel District School Board v OPSEU, Local 2100, 2022 CanLII 45221 (ON LA) (“Peel”) where Peel was successful in having the grievance dismissed because of a parallel WSIB claim.
In the TDSB decision, the grievor received a racist, threatening package at work. She filed a WSIB chronic mental stress claim and a grievance alleging violations of the Human Rights Code (the “Code”) and the Occupational Health and Safety Act (“OHSA”). The employer argued that because the WSIB had already allowed the mental stress claim, the grievance was barred under s. 26(2) of the Workplace Safety and Insurance Act (“WSIA”).
The arbitrator disagreed. He emphasized that the grievance wasn’t about benefits, it was about discrimination, harassment, and workplace safety, none of which fall within the WSIB’s mandate. As he put it, treating the grievance as merely a personal injury claim would “trivialize the applicant’s many concerns” and improperly “lump” human rights issues into WSIB territory. He also leaned on the quasi‑constitutional status of the Code and the paramountcy clause in the OHSA. In other words: WSIB exclusivity doesn’t swallow up human rights or safety obligations.
If this is true, then why was Peel successful in having its grievance dismissed?
In Peel, the grievor was injured at work, refused modified duties, and was denied ongoing Loss of Earnings (“LOE”) benefits by the WSIB. She then grieved the employer’s refusal to pay sick leave for the same period. The arbitrator took a firm stance: if the WSIB has already ruled on the suitability of modified work and the worker’s entitlement to benefits, an arbitrator cannot re‑litigate that issue. As the decision puts it, the WSIB had already determined “the modified work was suitable” and that the grievor’s refusal disentitled her to further LOE benefits.
The claim for human rights damages was also dismissed. The employer argued that the grievance was a collateral attack on the WSIB’s findings, and the arbitrator agreed. Since the grievor’s claim for human rights damages flowed from the allegation that the employer had not properly accommodated her, the arbitrator found that these claims were within the exclusive jurisdiction of the WSIB. In coming to this decision, the arbitrator pointed to the fact that the Human Rights Tribunal of Ontario has itself declined to hear cases that have already been dealt with by the WSIB.
For employers, this is good news: it reinforces that WSIB decisions on suitability of work and LOE entitlement are binding, even when employees try to repackage the issue as a collective agreement violation.
Where’s the line?
These two decisions illustrate a useful dividing line:
If the claim is really about …. | Who has jurisdiction? |
Entitlement to WSIB benefits, sick benefits, suitability of modified work, causation of injury | WSIB Exclusively |
Human Rights violations, harassment, or a poisoned work environment that the employer contributed to | Arbitrator |
The arbitrator in TDSB summed it up neatly: a claim is barred only if it is “for or by reason of an accident” and not simply because the same facts appear in a WSIB file.
What does this mean for Employers?
Here’s how these decisions should shape your approach:
- Don’t assume a WSIB decision ends the story
If the employee is alleging discrimination, harassment, or safety failures, the grievance may proceed, even if the WSIB has already ruled on the injury.
- Keep your modified work process tight
Peel shows that WSIB findings on suitability of work carry real weight. Clear documentation, timely offers, and consistent communication matter.
- Separate the WSIB lens from the human rights lens
A worker may be entitled to WSIB benefits and have a viable human rights grievance. These can be parallel, not mutually exclusive, processes.
- Train administrators and principals
How managers respond to incidents, especially those involving racism or harassment, can create liability independent of WSIB.
- Expect more of these hybrid cases
As mental stress claims increase, so will disputes that straddle WSIB and human rights issues. Arbitrators are signalling they will not let WSIB exclusivity override Code or OHSA protections.
Final thoughts
For employers, the message is clear: WSIB exclusivity is strong, but not absolute.
If the dispute is about benefits, modified work, or causation, the WSIB rules the day.
If the dispute is about discrimination, harassment, or safety, an arbitrator may decide to take jurisdiction.
Understanding this distinction helps employers manage risk, respond strategically, and avoid being blindsided by grievances that survive despite a WSIB ruling.
If you would like support assessing a grievance that is heading to arbitration, Protea LLP is ready to assist.
