Arbitrator delves into issue of discrimination claims after workers’ comp claims
In November 2020, an employee at the Toronto District School Board (TDSB) received a package containing anti-Black racist and sexist materials at her workplace.
Her employer's response would lead to a legal battle over whether workers can pursue discrimination claims after filing workplace injury claims.
Arbitrator Daniel P. Randazzo ruled on Jan. 12, 2026, that the grievance filed by the Elementary Teachers' Federation of Ontario on behalf of Kisrene McKenzie can proceed to arbitration, rejecting the school board's argument that the Workplace Safety and Insurance Board (WSIB) holds exclusive jurisdiction over the matter.
Offensive materials sent to school
The package, delivered from a US-based website called Witty Yeti, contained offensive materials with language visible on the outside that could be seen from a distance. Before it reached McKenzie on the morning of Nov. 26, 2020, the school's Vice Principal had possession of it.
The union alleged the Vice Principal's failure to flag or isolate the package constituted discrimination and a workplace hazard. In a revelation disclosed only during the May 2024 hearing, the employer reported that the Vice Principal's credit card had been fraudulently used to purchase the offensive package and a second one.
The union further claimed McKenzie received no timely support, care, or assistance in dealing with the discriminatory package. The combination of the package itself, the Vice Principal's inaction, and the alleged failure to investigate properly all contributed to the harm and trauma McKenzie experienced.
Employer's defence strategy fails
McKenzie filed a WSIB claim on Jan. 1, 2021, for mental stress and psychological trauma. The WSIB approved her claim for Chronic Mental Stress on Feb. 4, 2021, granting loss of earnings benefits from Nov. 27, 2020, to Dec. 7, 2020, and from Dec. 18, 2020, until her return to work in Fall 2021.
The school board then moved to dismiss a grievance filed Feb. 5, 2021, arguing that sections 26, 28, and 118 of the Workplace Safety and Insurance Act (WSIA) create exclusive WSIB jurisdiction. The employer characterized the union's attempt to distinguish the human rights claim from the WSIB claim as a "hair-splitting exercise."
The TDSB argued that because the WSIB claim and the grievance arose from the same facts, the human rights allegations were barred from arbitration. The employer's position was that section 26(2) of the WSIA operates as a complete prohibition against any action once a worker receives WSIB benefits.
Two parallel legal paths remain open
Randazzo dismissed the motion to dismiss, finding the substance of the grievance centered on alleged violations of the Ontario Human Rights Code and Occupational Health and Safety Act, which were never addressed by the WSIB.
The arbitrator stated: "A claim regarding a breach of the Code, which is the substance of the claim before me, is not equivalent to a claim for benefits under WSIA and is not compensable under WSIA."
Randazzo emphasized that barring the claim would trivialize McKenzie's allegations. He wrote: "Violations of the Code and OHSA are not part of the historic trade-off; the right to a safe workplace and the right to a discrimination-free workplace were not traded away under WSIA."
The arbitrator concluded: "Further, in the circumstances of this matter, it would be unfair and contrary to the purposes of the Code and OHSA to bar the Grievor, on the basis of issue estoppel, from seeking a remedy for breaches of the Code and OHSA."
