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Including Sexual Harassment in the Occupational Health and Safety Act

  In 2016, Parliament enacted Bill 132 as a measure to amend various statutes with respect to sexual harassment, sexual violence, domestic violence and other related matters.[1] The Occupational Health and Safety Act (‘OHSA’) was one piece of legislation affected by this Bill. Part III.0.1 was amended to include “sexual harassment,” meaning that all Ontario employers had to ensure that policies were in place to address these occurrences.[2] This amendment sparked criticism amongst employers across Ontario, claiming that the changes increased their obligations significantly.[3] On the other hand, workers should be pleased with the amendments since they are afforded added protection. Specifically, workers are now protected against employer reprisal for making complaints of workplace sexual harassment. Individuals are already protected against sexual harassment under the Ontario Human Rights Code (‘the Code’); however, it is argued that the amendments to the OHSA afford workers additional protection and gives them another forum to seek redress.[4] It will be interesting to see how the Ontario Labour Relations Board (‘OLRB’ or ‘the Board’) interprets the new sexual harassment provisions in light of employer reprisals. Since the amendments were brought into place, the Board has not heard any cases involving an employer reprising against a worker for making a sexual harassment complaint.

I will begin this paper by highlighting Parliament’s intention in amending the Occupational Health and Safety Act to include sexual harassment, followed by a discussion on the new obligations of employers under the Act. I will then move on to analyze the legal test for reprisal under s. 50 of the OHSA. I will do so in relation to harassment complaints brought before the OLRB. Since the Board has yet to hear a sexual harassment reprisal case, I will attempt to predict how the Board will apply the reprisal test to these new provisions. Next, I will address one of the biggest concerns surrounding the amendments; namely, whether the new provisions allow for duplicative litigation as between the OHSA and the Ontario Human Rights Code. Lastly, I will briefly highlight the remedies available to workers under both pieces of legislation if an employer is found guilty of a reprisal.

Background

a) Purpose of Bill 132

The purpose of Bill 132 was to send a message that the government does not tolerate violence and that all Canadians would benefit from living without the threat of violence.[5] As such, statutes such as the Compensation for Victims of Crime Actthe Limitations ActResidential Tenancies Act, Ministries of TrainingColleges and Universities Act, Private Career Colleges Act, and the Occupational Health and Safety Act were amended to denounce violence in schools, the workplace, and at home.[6] This amendment was in direct response to misogynistic attitudes and rape cultures prevalent in society.[7] It was aimed at putting an end to treating women as sexual objects, debunking rape myths, and promoting women’s equality through holding perpetrators accountable.[8]

Despite a broad mandate to end all forms of violence, Bill 132 had an enormous impact on the Occupational Health and Safety Act specifically. Sexual harassment at work is viewed as a health and safety issue, due to the grave negative impact it could have on a person’s well being, whilst trying to make a living. In the Supreme Court of Canada decision, Reference Re Public Service Employee Relations Act, Chief Justice Dickson, highlighted the importance of work. He stated at paragraph 90:

“A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being…Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical element of a person’s dignity and self-respect.”[9]

Based on this statement alone, one can begin to understand why the OHSA was amended to include protection against sexual harassment.

b) Amendments to the Occupational Health and Safety Act

i) Inclusion of a “workplace sexual harassment” program

As mentioned above, one of the biggest changes to the Act was the inclusion of a definition of workplace sexual harassment under s. 1.[10] Workplace sexual harassment is defined as:

(a) “engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.[11]

Based on this new inclusion, employer’s obligations with respect to protecting health and safety in the workplace have radically increased. Section 32.0.1 has always provided that employers prepare and review a policy on workplace harassment;[12] however, s. 32.0.6(1) of the Act now includes a requirement that a workplace harassment program be developed and maintained in consultation with a joint health and safety committee, in order to implement the harassment policy.[13]  This provision in particular, is extremely beneficial to workers because s. 9 (7) of the Act stipulates that at least half the members of this committee be workers who do not hold any managerial functions.[14] This could potentially protect workers who may be subject to sexual harassment at the hands of their powerful and authoritative superiors, as these superiors will not be the sole dictators in shaping the policies. Section 32.0.6(2) states that the program maintained by this committee must include: measures and procedures for workers to report incidents of harassment, it must set out how the incidents will be investigated, how the worker will be informed of the investigation, and how all complaints, investigations, and results must remain confidential.[15]

ii) Investigations

Under s. 32.0.7(1), an employer must now conduct an investigation into incidents and complaints of workplace harassment that is appropriate in the circumstances.[16] The wording of s. 32.07(1), in addition to the Ministry of Labour’s Health and Safety Guidelines, suggest that the intent of this provision to ensure that employers address workplace harassment if they are made aware of such incidents.[17] Therefore, a formal complaint by a worker may no longer trigger the duty of an employer to investigate. As a precaution, employers should take it upon themselves to look into incidents of harassment, a point that will be further discussed in the latter portion of this paper.

The Act does not specify what an appropriate investigation would entail; however, the Ministry of Labour further elaborates on the obligations of employers. The Health and Safety Guidelines state that an appropriate investigation is timely, fair, and addresses all relevant issues.[18] Whether an investigation is appropriate will also depend on the nature of the circumstances and the complexity of the complaint.[19] The Ministry recognizes that investigating a sexual harassment complaint may be more complex than a regular harassment complaint, given the sensitivity of the situation.[20]

When an investigation is conducted, certain steps must be taken. First, the employer must review the details of the incident and interview the complainant, the alleged harasser, and any other relevant witnesses.[21] Next, they must examine any documents that are relevant to the complaint, including emails and notes from meetings.[22] They must then determine whether the complaint is workplace harassment and provide a written report to the complainant.[23] This report must summarize the incident, outline the steps the employer has taken to investigate, provide the evidence they have gathered, and include their findings on whether harassment has occurred.[24] The employer is not precluded from finding that they cannot determine whether harassment has occurred.[25] However, under s. 55.3(1) of the Act, a Ministry of Labour inspector can order an impartial party who the possesses knowledge, experience, and qualification as specified by the inspector, to conduct a investigation into the complaint at the employer’s expense.[26] This will usually be the case where the Ministry has reason to believe that an appropriate investigation has not occurred.[27] It is important to note that this addition places increased pressure on employers to act in compliance with the OHSA and conduct a timely, fair and objective investigation. If not, an employer could be found guilty of an offence and “liable to a fine of not more than $25,000 or a term of imprisonment of not more than 12 months, or to both”, per s. 66(1) of the Act.[28]

Test for Reprisal

I will now move on to analyze the test for reprisal under the Occupational Health and Safety Act. The test for reprisal constitutes three parts. At the first stage of the test, the worker must prove that were acting in compliance with or sought the enforcement of the Act and suffered an adverse consequence described in s. 50(1).[29] Section 50(1) states:

50. (1) No employer or person acting on behalf of an employer shall

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an

order made thereunder, has sought the enforcement of this Act or the regulations or

has given evidence in a proceeding in respect of the enforcement of this Act or the

regulations or in an inquest under the Coroners Act.[30]

Once this is established, the employer has a burden under s. 50(5) to prove that the consequences against the worker had nothing to do with any protection listed under the Occupational Health and Safety Act.[31] If the Board determines that it is “more likely than not” that the penalty issued by the employer was driven by a worker exercising their rights under the Act, a breach will be found.[32] In the next portion of this paper, I will be applying this test and predicting how the OLRB will decide sexual harassment complaints brought by a worker. This analysis will apply the regular harassment provisions to do so, as the Board has significant experience handling these claims.

i) Acting in compliance with or sought the enforcement of the Act

a) Bringing forth a complaint

What constitutes a right under the Act in terms of workplace harassment? The Ontario Labour Relations Board previously imposed a strict reading of the harassment provisions and concluded that making a harassment complaint was not protected under the Act.[33] In Conforti v. Investia Financial Services Inc, a dispute arose between the applicant and another employee.[34] The applicant believed that a series of emails he received constituted harassment. He complained to his superiors and thought an agreement was reached.[35] However, the next day, the applicant received another email from an employee, believing it to be additional harassment. He responded to the email in a confrontational manner and later received an email from his superior asking him to refrain from sending these emails.[36] The applicant responded in a similar tone and questioned his superior’s competency. The applicant was then terminated and brought a reprisal claim.[37] In reading the harassment provisions, the Board indicated that s. 32.01 of the OHSA only required the employer to develop a policy with respect to workplace harassment and to provide the worker with information regarding the policy.[38] In other words, the employee could only make a complaint on the harassment policy itself, or lack thereof. Nothing in the Act suggested that employers must prevent workplace harassment.[39] Therefore, employers were free to retaliate against workers for making a harassment complaint under the mandatory policy, since nothing in the Act prohibited this behavior.

However, two years later, there was a different reading of the harassment provisions in Ljuboja v. Aim Group Inc. The Board agreed with Investia that there was no obligation on employers to provide a workplace free of harassment or to provide a particular type of investigation or outcome of a complaint.[40] However, they differed in their analysis of what the complaint itself meant. Vice-chairman Jesse M. Nyman stated that if a worker makes a complaint of harassment under the Act, they are seeking the enforcement of the OHSA.[41] This is because they are requesting to have their employer comply with their procedural obligations.[42] If the employer chooses to ignore the complaint and reprises against the worker, they would not be implementing the policy as per the provisions.[43] Interpreting the Act otherwise would essentially render the provision pointless, as employers would not have any obligation to implement their workplace harassment policy in a way that workers could make a meaningful complaint.[44] In other words, the Act outlined the obligation of employers to include procedures for workers to report harassments for a reason, and if employers were free to terminate these workers because they had the courage to make a complaint, the Act would afford them no protection whatsoever.[45] Therefore, what can be taken from the Ljuboja decision is that by simply making a harassment complaint, and now a sexual harassment complaint, workers are exercising their rights under the Act and are seeking the enforcement of it. There is no evidentiary burden to prove that the events actually occurred; rather, the worker just has to state facts that would enable the Board to conclude that they were complaining about workplace sexual harassment.[46]

The new amendments to the OHSA gives rise to a new question of whether a formal complaint is still needed in order for a worker to seek the enforcement of the Act? As previously mentioned, s. 32.07(1) requires an employer to conduct an investigation into incidents and complaints of workplace harassment.[47] An argument can be made that if the scope of the employer’s duties has increased, this necessarily means that the scope of worker’s rights will also increase. The wording of the provision suggests that the legislature intended to protect workers from sexual harassment whether or not a formal complaint was made. Therefore, what would happen if a third-party informed management that a certain worker was being exposed to sexual harassment in the workplace? As the Act suggests, the employer would have a duty to investigate. However, if management determined that sexual harassment had not occurred, and then reprised against that worker, would the worker not have a claim under s. 50, since they themselves did not seek the enforcement of the Act? Surely, the legislature could not have intended this outcome, since the purpose of the amendments was to give workers added protection. There is also an added concern that workers subjected to sexual harassment will not report these incidents, given the nature of the claims and for the very fear of being reprised against. It would be a step-backwards to conclude that these individuals have not the sought the enforcement of the Act. Whether or not this interpretation is correct, the OLRB will have to turn its mind to the potential expansion of worker’s rights under the Act and it will have to account for situations where the worker does not bring a formal complaint on their own accord.

ii) Meeting the definition of “workplace sexual harassment”

In order to seek the enforcement of the Act, the Ontario Labour Relations Board has also stated that the basis of the worker’s claim must fall within the proper s. 1 definition.[48] For instance, when considering workplace harassment complaints, the Board has indicated it must meet the following definition:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or

(b) workplace sexual harassment;[49]

In the case, Gareau v. Paramed Home Health, the Board examined a harassment complaint made by an employee and stated that it did not fall within the s. 1 definition.[50] The employee, Ms. Gareau, alleged that a coordinator, Ms. Beattie, harassed her.[51] She complained of continuous scheduling problems and repetitive behaviour on the part of Ms. Beattie.[52] The Board concluded that these complaints did not suggest harassment; rather, they only stated that Ms. Beattie was failing to comply with the duties of her position.[53] Complaining that someone is not properly performing his or her job function, without providing more evidence, is not activity that would be protected by the Act.[54] In finding that Ms. Gareau’s complaint did not qualify as workplace harassment, the Board noted that applicants should not be held to an impractical standard in enforcing their rights.[55] Therefore, even if a worker failed to use certain words in her complaint, such as the word “harassment,” it would not automatically mean the complaint would fail.[56] Rather, the Board should determine whether the facts of the case suggest that harassment has occurred.

In applying this logic to future sexual harassment complaints, it is likely that the Board will also require a strict compliance to the workplace sexual harassment definition. That is, “engaging in a course of vexatious comments or conduct against a worker in a workplace” where it is “known or ought to reasonably be known as unwelcome”, or a person in authority making sexual solicitation or advancements where they “know or ought reasonably to know” that it is unwelcome.[57] The Ministry of Labour has offered some guidance on what exactly this definition encompasses. Workplace sexual harassment can be comments or conduct occurring more than once, or it can be a single occurrence.[58] Some examples include: “leering or inappropriate staring, unnecessary physical contact, including inappropriate touching, invading personal space, asking questions, talking, or writing about sexual activities, rough or vulgar humour or language related to sexuality, sexual orientation or gender, and demanding hugs, dates, or sexual favours.” [59] Again, it appears that the legislature did not intend for the applicant to bear the onus of proving that these incidents did in fact occur in order to meet the first part of the test; rather, the complaint on its face must appear to meet the definition of workplace sexual harassment per s.1 of the OHSA.[60]

It should also be noted that the addition of s. 1(4) to the OHSA in 2016 does not appear to be applicable to sexual harassment complaints. This section states that workplace harassment claims should not include any reasonable action taken by the employer relating to the management and direction of the workplace.[61] When analyzing sexual harassment complaints, the OLRB will likely not determine whether the action related to the management, as no complaints of a sexual nature will ever amount to relating to the direction and operation of the workplace. Therefore, an extra layer of the analysis will likely be removed when deciding sexual harassment cases.

Notwithstanding all of the criteria needed to meet the first branch of the reprisal test, in the past, the OLRB has afforded the applicant a great amount of leniency. That is, even if the applicant does not meet a prima facie case in showing that they were acting in accordance or seeking the enforcement of a right under the Act, the Board will usually allow the claim to move on to the next part of test.[62] This will happen where an applicant has pleaded facts that call for an employer’s explanation.[63] For example, if the worker was terminated shortly after the complaint was made, the Board will want the employer to justify their suspicious actions.[64] Based on this analysis, it appears that it is relatively simple for a worker to meet the first part of the reprisal test. It is likely that when determining workplace sexual harassment cases, the OLRB will automatically shift the burden to the employer to prove that their disciplinary action did not arise from the worker’s complaint. As a result, some may argue that employers are automatically assumed guilty of reprisal as soon as a proper complaint is made and the employer takes subsequent action.[65]

Summary:

In order to meet the first branch of the test for reprisal under the harassment provisions, a worker must prove they are acting in compliance with or sought the enforcement of the Act and suffered an adverse consequence as a result.[66] This will be satisfied, if the worker brings a sexual harassment complaint that falls within the s.1 OHSA definition of “workplace sexual harassment.” Depending on how the OLRB interprets s. 37.01(7), this can also mean that a worker is seeking the enforcement of the Act when the employer becomes aware of sexual harassment in the workplace. In any event, workers will not be held to an unrealistic standard in trying to enforce their rights[67] and even if a prima facie case is not made out, it is likely that the Board will move on and ask the employer to justify their actions.[68]

b) Burden shifts: Consequences on the worker do not relate to any statutory protected action

The next part of the reprisal test requires the employer to prove on a balance of probabilities that they did not act contrary to s. 50.[69] Labour Boards apply this portion of the test strictly against employers. In Fullerton v. Nygard International,the OLRB recognized that there may be legitimate reasons for an employer to take action against worker; however, if this action has any connection to the applicant asserting their rights under the OHSA, no matter how small, the termination or suspension will be in violation of s. 50 and the worker will be entitled to relief.[70] To further elaborate on this point, in canada.westlaw.com/Link/Document/FullText?findType=Y&pubNum=6407&serNum=1977148344&originationContext=document&transitionType=DocumentItem&contextData=(sc.Keycite)">Doyle v. Yellowknife District Hospital Society, the Canada Labour Relations Board stated that, “an employer must not be permitted to achieve a discriminatory objective because he coupled his discriminatory motive with other non-discriminatory reasons for his act.”[71] In most cases, employers will try to justify their action either by claiming that the worker had performance deficiencies, was not a good fit or failed to follow direction. Therefore, the employer must prove that these explanations were the sole factor in their decision to take action against the worker.

In order to determine whether the employer has met their burden, the Board considers a number of factors. It should be noted that the same factors could be applied to every reprisal claim, whether it is workplace sexual harassment or not. Therefore, it is relatively easy to predict how the OLRB apply workplace sexual harassment complaints to employer reprisals. The following criteria is used:

i) Timing of the discipline

Timing of the discipline will usually invite an inference between the action taken by the

employer and the alleged complaint brought by the worker.[72] For example, if a manager terminates or suspends a worker one week after that worker has made a sexual harassment complaint, it is likely that the Board will determine that this action was in fact a reprisal. However, employers cannot use a prolonged period of time between their action and the complaint as proof that a reprisal did not occur.[73] In canada.westlaw.com/Document/I1a52265c4fcd0127e0540021280d79ee/View/FullText.html?listSource=Search&navigationPath=Search%2fv3%2fsearch%2fresults%2fnavigation%2fi0ad7140b0000015fc1f3afe367b3a096%3fNav%3dCAN_CASES%26fragmentIdentifier%3dI1a52265c4fcd0127e0540021280d79ee%26startIndex%3d1%26contextData%3d%2528sc.Search%2529%26transitionType%3dSearchItem&list=ALL&rank=1&listPageSource=33473e70bb7b85b6361349ef3e1c07b5&originationContext=docHeader&contextData=(sc.Search)&transitionType=Document&needToInjectTerms=False">Saumur v. Commissionaires Ottawa, the applicant brought a harassment complaint in March 2014 and was terminated in June 2014.[74] The OLRB stated that the time in between the complaint and the termination is not determinative of whether a reprisal existed.[75] In other words, if a termination is a reprisal, it will not be found to be otherwise, simply because the employer delayed in an attempt to avoid the consequences.[76]

ii) Employer’s Explanation or Rationale for their decision

Another criteria that the Board considers are the employer’s rationale for disciplining the worker.[77] This explanation has been cited by the OLRB as one of the most important factors to analyze.[78] For instance, if the employer does not provide an explanation for why, how, and when

their decision to discipline the worker was made, or if they do not provide any evidence to back

up their decision, the Board will likely rule that there was a reprisal.[79]

In Saumar, the employer failed to provide the appropriate evidence to justify the

termination of their employee.[80] Saumar had made a complaint of harassment against her

supervisor in March 2014. An investigation was held and it was determined that her complaint was an exaggeration and unfounded[81]. She received a formal warning that her behaviour constituted unprofessional conduct and that further unsubstantiated complaints would result in an escalation of discipline.[82] In May 2014, Saumar was given a CEO Reprimand for using her phone while on duty; she denied that she ever used her phone on these occasions.[83] One week prior to her termination in June 2014, she contacted her manager to complain further about her supervisor’s behaviour.[84] Her manager ignored this complaint, and she was shortly after terminated for not being a “good fit.”[85] The manager later stated that her termination was based on an email he received from a supervisor, who complained about her non-conformance since her last discipline.[86] In addition, he cited an incident at a loading dock where she did not follow proper procedures.[87] In ruling that the employer did not provide adequate evidence to justify their actions, the Board stated that the email her manager relied on for the termination was never produced, nor was there any proof that the allegations in the email were valid.[88] Further, the incident at the dock was never identified as the justification for her termination.[89] Essentially, the employer did not establish clear evidence these issues were the only basis for their decision to terminate her.[90]

In another case, the OLRB justified an employees reprisal claim against her former employer because months after her termination, the employer offered her back her position.[91] The employee had made complaints about harassment in the workplace and she was ultimately terminated for “not meeting the requirements of the company.” [92] The Board reasoned that by asking her to come back to work on various occasions, the employer had proved that she did nothing to justify her termination, and that her termination was likely a result of her making a harassment complaint.[93]

iii) Employer action is severe and disproportionate to the alleged misconduct

If the employer alleges that the worker engaged in some form of misconduct and issues an action this is “severe or disproportionate” to the alleged misconduct, it is likely that the Labour Board will find a reprisal.[94] The idea is that the employer should not resort to the most serious action, unless the employee was warned about their offences and is given less serious discipline first.[95] For instance, if an employee, who has no prior misconducts, made a relatively minor error just a few weeks after bringing a sexual harassment complaint, a termination or suspension from their position would be viewed as highly disproportionate. Instead, the Labour Board would expect the use of progressive discipline or warnings as the first step in the disciplinary process, presuming the employee’s conduct does not go to the root of the employment contract.[96] The use of progressive discipline is especially important in unionized sectors, in order to reach the standard of “just cause” termination often provided for under collective agreements.[97] This is not to say non-unionized employers must prove just cause in order to justify a termination; however, a clear disconnect between the alleged conduct and the employer’s sanction can be indicative of an employer’s intention. Therefore, employers should consider keeping detailed notes about every meeting or interaction with workers who have engaged in improper conduct, so they will be able to bring this evidence to the Board if a reprisal action is brought against them. In addition, Labour Boards could compare an employer’s usual method of discipline to this particular worker’s sanction, in order to see whether or not the employer drastically diverged from their standard practice.

iv) Applicant’s testimony/evidence being unchallenged and uncontradicted

Despite the onus being on the employer to prove that they did not violate s. 50 of the Act, some cases suggest that the evidence brought forth by the applicants themselves, plays a part in determining whether a reprisal occurred.[98] For instance, in Smith v. FIO Automotive, the employee, Smith, failed to provide evidence about what happened in meetings with his supervisor.[99] Smith had made a complaint about harassment against his supervisor. Human resources subsequently attempted to find a solution for him to continue work, but Smith rejected all of the options given. Instead, he proposed going back to work under his old supervisor.[100] Human resources concluded that this was not a viable option and an agreement was made between the parties that Smith would quit in exchange for money.[101] Smith later brought an action under s. 50, yet offered little-to-no explanation for how the human resources’ offer constituted a reprisal.[102] The Board concluded that there was no reprisal and that the decision to discharge him was a result of the party’s mutual agreement.[103] There was no evidence brought forward by Smith that his discharge resulted from his workplace harassment complaint.[104]

One must keep in mind that the nature of sexual harassment complaints are much more serious and sensitive than regular harassment incidents. Therefore, the OLRB should exercise caution when determining the credibility of applicants and employers in sexual harassment cases. This is to avoid credibility contests and potential “rape myths” that may be prevalent within the legal system. While the government has condemned the use of rape myths in sexual assault cases, it cannot be said that these viewpoints are completely erased from our society.[105] For instance, the doctrine of recent complaint suggests that if a sexual assault actually occurred, the complainant would have reported it immediately.[106] However, research has shown the reluctance to report is based on a fear that complainants will be disbelieved, judged or even blamed for what has happened.[107] Therefore, Labour Boards should be alive and aware of these issues and ensure that they do not allow myths, such as the doctrine of recent complaint, to affect their analysis.

Summary

To sum up the above points, the employer must prove on a balance of probabilities that

their response to an employee’s alleged misconduct did not constitute a reprisal.[108] Any connection to a worker asserting their rights under the OHSA will be viewed as a violation of s. 50.[109] The Board will consider a number of factors in determining whether the employer has met their burden. Timing can be considered indicative of a reprisal; however, employers cannot rely on elapsed time to disprove a reprisal.[110] In addition, the employer should have evidence available to back up their position as to why they sanctioned the worker.[111] The punishment should not be disproportionate to the alleged misconduct[112] and the reliability and credibility of the parties can be used to assist the Board in coming to their conclusion.[113]

Is Duplicative Litigation at Issue?

One of the biggest concerns of employers and management-side lawyers is whether the 2016 amendments give rise to duplicative litigation for hearing cases of workplace sexual harassment.[114] As mentioned previously, the Ontario Human Rights Code also protects against sexual harassment and reprisals. Section 5(2) of the Code states:

“Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.”[115]

Therefore, when a person is the subject of sexual harassment in the workplace, they could bring a claim under both the OHSA and the Code, as the two laws are not mutually exclusive.[116] However, s. 45.1 of the Code states that the Human Rights Tribunal (“Tribunal”) can dismiss an application, in whole or in part, if they are of the opinion that another proceeding appropriately dealt with the application.[117] This section has been the subject of many Tribunal decisions, determining whether or not they have jurisdiction to hear a case. In Dunn v. Sault Ste. Marie, the Tribunal stated that s. 45.1 includes any proceedings under other statutory schemes.[118] The section is not limited to just “decisions,” or else the wording of the Act would have been narrower.[119] In addition, this section is intended to create certainty in the law, as parties would be extremely prejudiced from having issues re-litigated.[120]  For instance, if the parties reach an agreement, there are expectations that the matter is at an end and that certain obligations must be fulfilled. If matters were heard in different forums, this would undermine court proceedings and create confusion amongst the parties.[121]

The Tribunal cited another decision, Campbell v. Toronto District School Board, for its interpretation of s. 45.1.[122] Campbell stated that the Tribunal’s discretion is as wide as the doctrine of issue estoppel and abuse of process.[123] Issue estoppel bars litigation where the same question has been decided, the earlier decision was final and where the parties, or their privies, were the same.[124] Abuse of process has similar concerns, disallowing re-litigation in an attempt to impeach judicial findings.[125] Further, Campbell stated that the Tribunal cannot be overly technical in applying these principles and cannot act an appellate court to fix the wrongs they believed occurred in previous proceedings.[126]

In Dunn the issue was whether or not a settlement reached at the Ontario Labour Relations Board with the union and employer, precluded the Tribunal from hearing the case.[127] It was ultimately concluded that the complaint against the union was appropriately dealt with at the OLRB; therefore, they had no jurisdiction to hear it again.[128] The same facts against the union were raised and since the parties voluntarily chose to reach a settlement and file an application at the OLRB, they agreed to benefit from the advantages of settling. [129] However, the Tribunal’s analysis with respect to the employer was different. The same legal issues that were before the OLRB were not raised in this new forum and there was no indication that the parties intended to complete the dispute as between the employee and employer at the settlement.[130]

When applying these principles to the new sexual harassment provisions under the OHSA and reprisals, it becomes clear that the parties may subject to duplicative litigation. This is because the OLRB has frequently reiterated that if the worker actually wants to remedy the harassment that has occurred to them, there would be no authority to do so under the OHSA.[131] The OLRB maintains this position even after the new amendments to the OHSA. In a recent decision the OLRB in Egredzija v. Cro-Tech Electrical Contractors Ltd, endorsed comments from Ljuboja, in which the Board stated that their inquiry and focus is almost never on the underlying harassment.[132] Instead, they must only address whether a complaint was made, whether the worker suffered a detrimental impact and whether there is a nexus between the two, as provided by the reprisal test.[133] If they wish to remedy the underlying harassment, the employee would be required to bring a complaint under the Ontario Human Rights Code, provided that the harassment was based on a protected ground.[134] Therefore, based on this analysis, it becomes clear that a worker may bring a claim to the OLRB arguing that their employer failed to conduct an investigation appropriate in the circumstances and they suffered a reprisal. In addition, they can bring a proceeding to the Ontario Human Rights Tribunal claiming that they were subject to sexual harassment based on a protected ground under s. 5(2). This would not constitute issue estoppel or an abuse of process, because the two matters would be dealing with different issues. As mentioned earlier, the OLRB has yet to decide a case applying the new sexual harassment provisions; however, it will be interesting to see how they handle this issue.

Remedies under the OHSA and the Human Rights Code

If the OLRB and the Human Rights Tribunal both have the ability to hear sexual harassment reprisal decisions, this could mean that if found guilty, the employer could face severe consequences. Typically, if the employee was terminated or discharged and the employer does not satisfy their burden to prove that a reprisal did not occur, the OLRB will reinstate the worker and impose an obligation on the employer to pay the individual for lost wages and benefits.[135] However, in cases where sexual harassment has occurred, it is probable that a worker will not want to be reinstated. In this situation, the Board finds it appropriate to award damages from the date of the dismissal to the date where that worker finds alternative employment.[136] However, if the action proceeded at the Ontario Human Rights Tribunal, the employer could face even harsher punishment. Under s. 46.2(1) of the Code, it states that “every person who contravenes s. 9… is guilty of an offence and liable to a fine of not more than $25, 000.”[137]  Section 9 is an all-encompassing provision, which states that there shall be no infringements, directly or indirectly, to a right under Part 1 of the Code, which encompasses the sexual harassment (s. 7) and reprisal (s. 8) provisions.[138] Therefore, the Tribunal has jurisdiction to impose general damages of up to $25,000 in cases of sexual harassment. In addition, where reprisals have occurred based on sexual harassment complaints in the workplace, the Tribunal has also awarded moral damages, for the manner in which the discipline against the employee was undertaken.[139] That is, if the manner of the discipline was unfair or was executed in bad faith.[140] Based on this brief analysis, one can begin to understand how seriously employers must take complaints of sexual harassment in the workplace. If they fail to do so expensive consequences can follow.

Conclusion

Sexual harassment should have no place in our society, especially in the workplace. It is crucial that employees and workers feel comfortable whilst making a living, since this is where they spend most of their time. Being sexually harassed by a superior or a fellow employee can have serious negative impacts on a person’s well-being and safety. Therefore, it is laudable that Parliament amended the Occupational Health and Safey Act in 2016 to include instances of sexual harassment. With this addition, the obligations and duties on management have increased. Employers must ensure that policies and programs are in place to deal with instances and complaints of sexual harassment. In addition, a worker has a right under the Act to make a complaint and to be free from employer reprisal. It is likely that the OLRB will continue to apply the reprisal test strictly against employers, after a worker has filed a complaint and is subsequently disciplined. Employers must be careful to ensure that they do not reprise against a worker who has sought the enforcement of the Act. If there are grounds to terminate and suspend the worker, the employer must take precautionary steps to gather the appropriate evidence in order to prove that their disciplinary action had nothing to do with the worker making a complaint under the Act. Based on the above analysis, it appears that employers will have a difficult time doing so. However, one can argue that this is warranted, since work is one of the most fundamental aspects of an individuals life, thus, worker’s rights should not be infringed upon lightly.

TABLE OF AUTHORITIES

LEGISLATION

Human Rights Code, RSO 1990, c H-19.

Occupational Health and Safety Act, RSO, 1990, c 01.

JURISPRUDENCE

British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal), 2011 SCC 52, 3 SCR 422.

Campbell v. Toronto District School Board (2008) HRTO 62, [2008] OHRTD 60.

Conforti v. Investia Financial Services Inc [2011] OLRD 3623 (OLRB).

Doyle v. Yellowknife District Hospital Society (1997),77 CLLC 16,083 (CLRB).

Doyle v. Zochem Inc, 2017 ONCA 130, 276 ACWS (3d) 114.

Dunn v. Sault Ste. Marie (2008) HRTO 149, 2008 CLLC 230-041.

Egredzija v. Cro-Tech Electrical Contractors Ltd [2017] OLRD 818 (OLRB).

Fullerton v. Nygard International, [2008] OLRD 5260 (OLRB).

Gareau v. ParaMed Home Health Care [2017] OLRD 1106 (OLRB).

Haran v. Continental Investissements Capital Inc [2017] OLRD 702 (OLRB).

Ljuboja v. Aim Group Inc [2013] OLRD 4309, 235 CLRBR (2d) 1 (OLRB).

McFarlane v. Distillery Market Inc (2011), OLRD (OLRB).

New Dominion Stores v. Retail Wholesale Canada Canadian Service Sector, Division of USWA, Local

414 [1997] OLAA 553, 60 L.A.C. (4th) 308.

Reference re Public Service Employee Relation Act, [1987] 1 SCR 313, 38 DLR (4th) 161.

Saumur v. Commissionaires Ottawa [2015] OLRD 1962 (OLRB).

Smith v. FIO Automotive [2017] OLRD 2380 (OLRB).

Wilken v. 1377041 Ontario Inc [2012] OLRD 4169 (OLRB).

SECONDARY MATERIAL: GOVERNMENT DOCUMENTS

Ontario, Human Rights Commission, “Appendix B—Human Rights in the Workplace: Which Laws” (2008).

Ontario, Legislative Assembly, Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, 41st Leg, 1st Sess, (2016), Preamble.

Ontario, Legislative Assembly, Hansard, 41st Parl, 1st Sess, No 113 (28 October 2015) (Laurie Scott).

Ontario, Legislative Assembly, Hansard, 41st Parl, 1st Sess, No 113 (28 October 2015) (Peggy Sattler).

Ontario, Ministry of Labour, “Health and Safety Guidelines—Workplace Violence and Harassment: Understanding the Law” (September 2016).

SECONDARY MATERIAL: ENCYLOPEDIC DIGESTS

CED 4th (online), Labour Law, (Ont), “Provincial: Ontario Labour Relations Act: Historical Background II.1. (a))

SECONDARY MATERIAL: ARTICLES

Adell, Bernard. “Workplace Disciplinary Rules and Procedures in Canada” (1993) 132:1 Int’l Lab Rev 5-6.

Johnson, Holly. “Why Doesn’t She Just Report It: Apprehensions and Contradictions for Women Who Report Sexual Violence to the Police” (2017) 29:1 Canadian Journal of Women and the Law.

SECONDARY MATERIALS: WEBSITES

Edwards, Cheryl A et al, “OHSA Bill 132 Amendments: Navigating the Workplace Harassment Sea-Change” (24 June 2016), Mathews Dinsdale (blog).

SECONDARY MATERIALS: LECTURES

Banks, Kevin. (22 November 2017) “Freedom of Association, Freedom of Expression, Grievance Arbitration,” Lecture, Queen’s University, Kingston, Ontario.

Law, David K. (4 October 2017) Internal Responsibility and Regulatory Enforcement in Occupational Safety, Lecture, Queen’s University, Kingston, Ontario.


[1] Ontario, Legislative Assembly, Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, 41st Leg, 1st Sess, (2016), Preamble.

[2]Ibid.

[3] Cheryl A. Edwards, et al, “OHSA Bill 132 Amendments: Navigating the Workplace Harassment Sea-Change” (24 June 2016), Mathews Dinsdale (blog), online: <www.mathewsdinsdale.com/bill-132-amendments/> [Edwards].

[4] Ibid.

[5] Ontario, Legislative Assembly, supra note 1.

[6] Ibid.

[7] Ontario, Legislative Assembly, Hansard, 41st Parl, 1st Sess, No 113 (28 October 2015) at 6064 (Laurie Scott).

[8] Ontario, Legislative Assembly, Hansard, 41st Parl, 1st Sess, No 113 (28 October 2015) at 6061(Peggy Sattler).

[9] Reference re Public Service Employee Relation Act, [1987] 1 SCR 313 at para 90, 38 DLR (4th) 161, Dickson CJ.

[10] Ontario, Legislative Assembly, supra note 1.

[11] Occupational Health and Safety Act, RSO, 1990, c 01, s 1 [OHSA].

[12] Ibid, s 32.0.1.

[13] Ibid, s 32.0.6(1).

[14] Ibid, s 9(7).

[15] Ibid s 32.0.6(2)

[16] Ibid s. 32.0.7(1).

[17] Ontario, Ministry of Labour, “Health and Safety Guidelines—Workplace Violence and Harassment: Understanding the Law” (September 2016) at 29 [Health and Safety Guidelines].

[18] Ibid at 30.

[19] Ibid at 32.

[20] Health and Safety Guidelines, supra note 1 at 30.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] OHSA, supra note 11 s 55.3(1).

[27] Edwards, supra note 3.

[28] OHSAsupra note 11 s 66(1).

[29] McFarlane v. Distillery Market Inc (2011), OLRD at para 5 (OLRB) [McFarlane].

[30] OHSAsupra note 11 s 50(1).

[31] McFarlane, supra note 29.

[32] Wilken v. 1377041 Ontario Inc [2012] OLRD 4169 at para 15 (OLRB) [Wilken].

[33] Conforti v. Investia Financial Services Inc [2011] OLRD 3623 at para 17 (OLRB).

[34] Ibid at para 24.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] Ibid at paras 16-17.

[39] Ibid at para 12.

[40] Ljuboja v. Aim Group Inc [2013] OLRD 4309 at para 35, 235 CLRBR (2d) 1 (OLRB) [Ljuboja].

[41] Ibid at para 51.

[42] Ibid at para 50.

[43] Ibid at para 53.

[44] Ibid at para 49.

[45] Ibid.

[46] Gareau v. ParaMed Home Health Care [2017] OLRD 1106 at para 17 (OLRB) [Gareau].

[47] OHSA, supra note 11 s 32.07(1).

[48] Gareau, supra note 46 at para 17.

[49] OHSAsupra note 11 s 1.

[50] Gareau, supra note 46 at para 24.

[51] Gareau, supra note 46 at para 21.

[52] Ibid.

[53] Ibid at paras 23, 25.

[54] Ibid at para 23.

[55] Ibid at para 19.

[56] Ibid.

[57] OHSA, supra note 11 s. 1.

[58] Health and Safety Guidelines, supra note 17 at 9.

[59] Ibid at 10.

[60] Gareau, supra note 46 at para 19.

[61] OHSAsupra note 11 s 1(4).

[62] Ljubojasupra note 40 at para 68.

[63] Ibid.

[64] Ibid.

[65] David K. Law (4 October 2017) Internal Responsibility and Regulatory Enforcement in Occupational Safety, Lecture, Queen’s University, Kingston, Ontario.

[66] McFarlane, supra note 29 at para 5.

[67] Gareau, supra note 46 at para 19.

[68] Ljuboja, supra note 40 at para 68.

[69] Wilken, supra note 32 at para 23.

[70] Fullerton v. Nygard International, [2008] OLRD 5260 at para 29 (OLRB) [Fullerton].

[71] Doyle v. Yellowknife District Hospital Society (1997),77 CLLC 16,083 at para 12 (CLRB).

[72] Wilken, supra note 32 at para 29.

[73] Saumur v. Commissionaires Ottawa [2015] OLRD 1962 at para 64 (OLRB) [Saumur].

[74] Ibid at paras 2,7.

[75] Ibid at para 64.

[76] Ibid.

[77] Ibid at 65.

[78] Ibid.

[79] Wilken, supra note 32 at para 29.

[80] Saumur, supra note 73 at para 66.

[81] Ibid at para 25.

[82] Ibid at para 26.

[83] Ibid at paras 30, 32.

[84] Ibid at para 33.

[85] Ibid at para 38.

[86] Ibid at para 53.

[87] Ibid.

[88] Ibid at para 66.

[89] Ibid at para 65.

[90] Ibid at para 69.

[91] Haran v. Continental Investissements Capital Inc [2017] OLRD 702 at para 23 (OLRB) [Haran].

[92] Ibid at para 17.

[93] Ibid at para 23.

[94] Wilken, supra note 32at para 29.

[95] Bernard Adell, “Workplace Disciplinary Rules and Procedures in Canada”, online: (1993) 132:1 Int’l Lab Rev 5-6 at 594.

[96] Kevin Banks (22 November 2017) “Freedom of Association, Freedom of Expression, Grievance Arbitration,” Lecture, Queen’s University, Kingston, Ontario.

[97] CED 4th (online), Labour Law, (Ont), “Provincial: Ontario Labour Relations Act: Historical Background” II.1. (a)) at §131 & New Dominion Stores v. Retail Wholesale Canada Canadian Service Sector, Division of USWA, Local 414 [1997] OLAA 553 at para 26, 60 L.A.C. (4th) 308.

[98] Wilken, supra note 32 at para 29.

[99] Smith v. FIO Automotive [2017] OLRD 2380 at para 32 (OLRB) [Smith].

[100] Ibid at para 27.

[101] Smith, supra note 99 at para 28.

[102] Ibid at para 32.

[103] Ibid at para 38.

[104] Ibid at para 32.

[105] Holly Johnson, “Why Doesn’t She Just Report It: Apprehensions and Contradictions for Women Who Report Sexual Violence to the Police”, online: (2017) 29:1 Canadian Journal of Women and the Law at 43.

[106] Ibid at 41.

[107] Ibid at 37.

[108] McFarlane, supra note 29 at para 5

[109] Fullerton, supra note 70 at para 29.

[110] Wilken, supra note 32 at para 29.

[111] Ibid.

[112] Ibid.

[113] Ibid.

[114]Edwards, supra note 3.

[115] Human Rights Code, RSO 1990, c H-19, s 5(2) [Code].

[116] Ontario, Human Rights Commission, “Appendix B—Human Rights in the Workplace: Which Laws” (2008).

[117] Code, supra note 11 s 45.1.

[118] Dunn v. Sault Ste. Marie (2008) HRTO 149 at para 37, 2008 CLLC 230-041 [Dunn].

[119] Ibid.

[120] Ibid at para 35.

[121] Ibid at para 42.

[122] Ibid at para 24.

[123] Campbell v. Toronto District School Board (2008) HRTO 62 at para 24, [2008] OHRTD 60 [Campbell].

[124] British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal), 2011 SCC 52 at para 27, 3 SCR 422.

[125] Ibid at para 31.

[126] Campbell, supra note 123 at para 24.

[127] Dunn, supra note 188 at para 1.

[128] Ibid at para 40.

[129] Ibid at paras 40-41.

[130] Ibid at para 52.

[131] Ljuboja, supra note 40 at para 63.

[132] Egredzija v. Cro-Tech Electrical Contractors Ltd [2017] OLRD 818 at para 12 (OLRB).

[133] Ibid.

[134] Ibid.

[135] Saumur, supra note 73 at para 74.

[136] Haran, supra note 91 at para 27.

[137] Code, supra note 115 s 46.2(1).

[138] Ibid s 9.

[139] Doyle v. Zochem Inc, 2017 ONCA 130 at para 47, 276 ACWS (3d) 114.

[140] Ibid at para 12.



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