School Board Update
Arbitrator Clarifies When Sick Leave May Be Available Following a WSIB Denial
Date: September 17, 2026
In Ontario Secondary School Teachers Federation, District 24 v. Waterloo Region District School Board, Arbitrator Mark Hart held that sick leave and short-term disability benefits are available only for non-workplace injuries or illnesses, because the WSIB has exclusive jurisdiction over workplace claims. Where the WSIB denies loss of earnings benefits, however, a school board is required to conduct a case-by-case assessment of whether there is a proper basis to grant sick leave or short-term disability benefits in a manner that respects the WSIB’s exclusive jurisdiction.
This award offers helpful guidance on interpreting central sick leave, short-term disability provisions and common local collective agreement terms as they apply to workplace injuries and illnesses.
Background
The Ontario Secondary School Teachers Federation (OSSTF) filed a policy grievance raising two issues:
- Whether it breaches the Collective Agreement to deny access to sick leave and/or short-term leave and disability plan benefits on the basis that an illness or injury is a workplace illness or injury.
- Whether it breaches the Collective Agreement to deny such benefits solely because the WSIB denied loss of earnings (LOE) benefits, without a case-by-case assessment.
The parties illustrated these issues using three employees, each of whom had a compensable workplace injury for which the WSIB denied LOE benefits for part of their absence because modified work was available. The School Board denied sick pay for the unpaid period because the absence was due to an approved WSIB claim.
Arbitrator’s Award
WSIB’s Exclusive Jurisdiction
Arbitrator Hart began with the settled case law on the WSIB’s exclusive jurisdiction over claims for compensation or damages arising from a workplace injury or illness, relying on the 2013 Ontario Court of Appeal decision upholding Vice-Chair Owen Gray’s decision in Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services and Ministry of Children and Youth Services) (Monk Decision). That decision interpreted sections 26 (no action for benefits) and 118 (jurisdiction) of the Workplace Safety and Insurance Act, 1997 to mean that a claim for compensation or damages arising from a workplace injury or illness cannot be the subject of a grievance arbitration due to the WSIB’s exclusive jurisdiction, and it has been applied consistently since.
Arbitrator Hart accordingly could not interpret the Collective Agreement in a manner that “trenches on the exclusive jurisdiction” conferred on the WSIB.
On that basis, he rejected the OSSTF’s argument that Central Article C12.1(a), which provides paid sick leave and short term disability days to eligible employees for personal illness, personal injury, personal medical appointments and personal dental appointments, and directs that routine medical and dental appointments be scheduled outside working hours where possible, was broad enough to allow sick leave/short term leave and disability plan (STLDP) entitlements for workplace injuries as well as non-occupational ones, holding this was “simply not a permissible interpretation.”
The OSSTF also relied on Central Article C12.1(g)(v), which states that a board must determine eligibility for sick leave or STLDP benefits on a case-by-case basis and must not deny access to these benefits based solely on a WSIB or LTD denial. Arbitrator Hart held that, where WSIB benefits are denied, the School Board must still consider on a case-by-case basis whether there is an appropriate basis to grant sick leave or STLDP benefits, while respecting the WSIB’s exclusive jurisdiction. This may include circumstances where:
- the WSIB found the absence not work-related, or
- a separate non-workplace injury or illness is responsible for the absence.
The OSSTF further relied on Articles C12.1(d)(iii) and (iv), which allow an employee accessing sick leave, STLDP, WSIB or LTD in consecutive school years to continue accessing unused days from the previous year’s allocation. Arbitrator Hart similarly found that these provisions do not confer an entitlement to sick leave or STLDP benefits for a workplace illness or injury again due to the WSIB’s exclusive jurisdiction over such claims.
Local Sick Leave Provisions
The OSSTF relied on Local Article L13.01(c) (cited below), under which an employee’s accumulated sick leave bank is charged if the WSIB denies lost time:
Should the Workplace Safety & lnsurance Board deny the lost time, the Employee’s accumulated sick leave account will continue to be charged one (1) full day for each day absent until the Employee returns to work or until the Employee’s accumulated sick leave account has expired, whichever comes first. The amount of any advance paid to the Employee, will be converted fully to sick leave salary, necessary to remit the Employee’s federal income tax, employment insurance premiums, and Canada Pension Plan contribution. At the expiration of the Employee’s accumulated sick leave, the procedure outlined in Article L14, L13.02 will apply.
The parties advanced different interpretations:
- The OSSTF’s position: the article applied whenever the WSIB denied a claim for any reason.
- The School Board’s position: the article applied only where the denial was because the illness or injury was not work-related.
Arbitrator Hart held that the OSSTF’s broad interpretation would infringe on the WSIB’s exclusive jurisdiction. An employee will only be entitled to sick leave following a WSIB denial of lost-time benefits if the employee qualifies for sick leave under Article C12.1(a) based on a non-workplace illness or injury.
WSIB Top-Ups Remain Permissible
Finally, the OSSTF argued that an employee was entitled to sick leave based on Local Article L13.01(b) (cited below), a common provision under which an employer tops up WSIB benefits using sick leave benefits to keep employees whole during a workplace illness or injury:
Should the Workplace Safety & lnsurance Board allow the lost time, the Employee’s sick leave will be adjusted within fifteen (15) working days of the Employer receiving written confirmation from the Workplace Safety & lnsurance Board, to reflect the appropriate percentage top up not covered by Workplace Safety & lnsurance Allowance. When the Employee’s sick leave has expired, the Workplace Safety & lnsurance Allowance will be paid by the Workplace Safety & lnsurance Board directly to the Employee and the Employee will be placed on an approved leave of absence, without pay.
Again, Arbitrator Hart confirmed, relying on the Monk Decision and other case law, that such top-up provisions do not encroach on the WSIB’s exclusive jurisdiction and do not change the fundamental principle that WSIB still retains exclusive jurisdiction over workplace injury or illness.
That exclusive jurisdiction was the foundation of his analysis throughout and significantly informed his interpretation of the relevant collective agreement terms.
Key Takeaways
- Collective agreement sick leave entitlements must not be interpreted as encroaching on the WSIB’s exclusive jurisdiction over claims for compensation or damages arising from a workplace injury or illness.
- The first question is whether the illness/injury is within the WSIB scheme. If a WSIB claim is approved at all, that illness/injury falls exclusively within WSIB jurisdiction, even if LOE benefits are denied.
- A denial of LOE benefits by the WSIB does not automatically entitle the employee to sick pay. Employers should assess whether there is a proper basis for sick leave entitlement, such as where the claim is unrelated to the workplace injury or illness.
- Jurisdiction turns on the substance, not the form, of the claim. Grievances over a failure to accommodate or termination of an employee receiving WSIB benefits generally fall within an arbitrator’s jurisdiction, provided they do not seek compensation for the workplace injury or illness itself.
This case was successfully argued by Hicks Morley lawyer, Glenn P. Christie.
Please contact your Hicks Morley lawyer if you would like to discuss the Award.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©