May an employee, unhappy with how he or she was treated after
filing a harassment complaint with the employer, turn to the
Ontario Labour Relations Board for a remedy? Up until recently, the
answer appeared to be "no". Two recent decisions of the
OLRB suggest otherwise.
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 he or
she has suffered a reprisal for filing a harassment complaint with
"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 OHSA (see Investia, 2011 Can LII 6089 and
Kazenel v. Citi Cards Canada Inc., 2012 Can LII 9582 etc).
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., 2013 CanLII 26528 (ON GSB), 2013 CanLII
26528). 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
Occupational Health and Safety Act 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
or 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.
We will continue to monitor the caselaw and provide updates on
Dentons is a global firm driven to provide you with the
competitive edge in an increasingly complex and interconnected
marketplace. We were formed by the March 2013 combination of
international law firm Salans LLP, Canadian law firm Fraser Milner
Casgrain LLP (FMC) and international law firm SNR Denton.
Dentons is built on the solid foundations of three highly
regarded law firms. Each built its outstanding reputation and
valued clientele by responding to the local, regional and national
needs of a broad spectrum of clients of all sizes –
individuals; entrepreneurs; small businesses and start-ups; local,
regional and national governments and government agencies; and
mid-sized and larger private and public corporations, including
international and global entities.
Now clients benefit from more than 2,500 lawyers and
professionals in 79 locations in 52 countries across Africa, Asia
Pacific, Canada, Central Asia, Europe, the Middle East, Russia and
the CIS, the UK and the US who are committed to challenging the
status quo to offer creative, actionable business and legal
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances. Specific Questions relating to
this article should be addressed directly to the author.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Only going to one mining investment show? Make it this one. PDAC International Convention, Trade Show & Investors Exchange is the world’s leading convention for people, companies and organizations in, or connected with, mineral exploration.
The four-day annual convention held in Toronto, Canada, has grown in size, stature and influence since it began in 1932 and today is the event of choice for the world’s mineral industry. In addition to meeting over 900 exhibitors, 22,000 attendees from over 125 countries, it allows you the opportunity to attend technical sessions, short courses as well as social and networking events.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).