The recent introduction of requirements for policies and
procedures relating to harassment and workplace violence in
Ontario's Occupational Health and Safety Act
("OHSA") has increased the regulatory workload
on employers. However, a recent decision by the Ontario Labour
Relations Board (the "Board") appears to limit to some
extent the scope of an employer's added responsibilities.
In K. Annette Harper v Ludlow Technical Products Canada
Ltd., an employee alleged that she was harassed at her
workplace by co-workers who had circulated a petition regarding her
activities in relation to a product safety issue. She complained to
her employer, and then notified the Board that her employer had
allegedly failed to investigate her concerns or comply with company
procedure for the investigation of harassment complaints. The
employee also claimed that, after filing a complaint with the
Board, her employer had refused to appropriately process her claims
for short-term disability or WSIB benefits in alleged violation of
section 50 of the OHSA, which prohibits reprisals against
an applicant by his or her employer.
The employer requested that the application be dismissed on the
basis that it failed to raise a prima facie violation of
section 50 of the OHSA. Under Rule 39.1 of the Board's
Rules of Procedure, an application may be dismissed by the Board
where the facts do not support the remedy or order requested, even
if all the facts as alleged by the claimant are true and provable.
The employer contended that because neither it nor any party acting
on its behalf was responsible for the alleged harassment of the
applicant, and because the alleged harassment was claimed to be
related to the applicant's product safety concerns (and
complaints regarding product safety are not governed by the
OHSA), the application should be dismissed. Further, the
employer submitted that the application could not succeed, because
the employer had prepared and posted a workplace harassment policy,
developed and maintained a program to implement such policy, and
provided workers with instruction on such policy, which are the
only obligations of an employer under the OHSA with
respect to workplace harassment, and there was no dispute that the
employer had complied with these obligations.
Following an earlier case before the Board, Investia
Financial Services Inc., the Vice-Chair noted that under the
OHSA, the employer has specific obligations and duties
related to harassment and workplace violence, including an
assessment of the risks of workplace violence; the establishment of
a program to implement the employer's policy countering
workplace harassment; and providing information and instruction to
employees regarding the employer's workplace harassment policy
However, there is no obligation on the part of the employer, and
no jurisdiction provided to the Board, to ensure that the workplace
is actually free of harassment. Similarly, the Board has no
jurisdiction to ensure that a workplace harassment policy
instituted by an employer is effective. Further, section 50 does
not protect employees from reprisal in respect of a complaint about
the effectiveness of the policy, where such a policy already
exists. As a result, the Board dismissed the case as against the
No employer wants to see harassment in its workplace. However,
provided that policies and procedures are in place to counter
workplace violence and harassment, the employer has complied with
its obligations under the OHSA. The Board does not have
jurisdiction to address complaints of harassment under the
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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