New Ontario decisions cause concern by allowing reprisal claims before the board
In a November 2013 decision called Ljuboja v. Aim Group Inc., Jesse Nyman, a Vice-Chair of the OLRB, rejected earlier OLRB decisions and decided that an employee may complain to the OLRB where she has suffered a reprisal for filing a harassment complaint with the employer.
In a decision called Murphy v. The Carpenters’ District Council of Ontario, decided on Jan. 23, 2014, another Vice-Chair of the OLRB, Brian McLean, somewhat reluctantly agreed to follow Vice-Chair Nyman’s decision:
“At the time of the hearing of this matter, there had been no settlement in the Board’s jurisprudence regarding whether the making of a harassment complaint constitutes the exercise of a right under the Occupational Health and Safety Act (OHSA) (see Investia and Kazenel v. Citi Cards Canada Inc., 2012 CarswellOnt 2985). In a decision issued after the hearing in the matter before me was completed, the Board (differently constituted) rejected the Investia reasoning and found that the making of a complaint under an employer’s harassment policy constitutes seeking the enforcement of the act (see Ljuboja v. A.I.M. Group Inc.). While I have some difficulty with the reasoning in that decision, I recognize that it is within a range of possible results and in the interests of consistent decision making regarding the Board’s interpretation of the OHSA, I accept it.”
These two recent decisions are concerning. The language of the OHSA suggests that harassment complaints are to be dealt with internally – by the employer and employee – and not to be brought to the OLRB. The OHSA language suggests that only if an employer has not implemented a harassment policy and program, or not ensured that the program contained the contents required under the OHSA, failed to post the policy, or failed to provide “information and instruction” to employees on the policy and program, may an employee complain to the OLRB. Put another way – and this is often misunderstood -- the OHSA does not place a legal obligation on employers to prevent harassment, so the OLRB has no authority to hear a complaint that the employer failed to prevent harassment or did not handle a harassment complaint properly.
The two recent decisions effectively permit employees, unhappy with the result of a harassment complaint, to allege “reprisal” and bring the case to the OLRB. If the law indeed allows that, one is concerned that the OLRB will receive a wave of such complaints that should be dealt with internally.
Of course, as before, complaints dealing with harassment because of race, gender, sex and other prohibited grounds of discrimination under the Human Rights Code may be brought to the Human Rights Tribunal. The OLRB decisions do not change that. Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or firstname.lastname@example.org. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.
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Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or email@example.com. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.