Canada: Workplace Violence & Harassment Under Bill 168: A 5-Year Review


It has now been just over five years since Bill 168, now known as Part III.0.1 of the Occupational Health and Safety Act (Ontario) ( "OHSA" or the "Act"), amended the OHSA on June 15, 2010. As Ontario employers are now generally aware, the amendments required employers to establish workplace violence and harassment policies, develop programs to implement those policies and provide employees with information regarding these policies and programs.

The purpose of this paper is to review the arbitral, common law and tribunal jurisprudence that has since emerged interpreting the amendments to the OHSA. The paper begins with a summary of Kingston (City) v. Canadian Union of Public Employees, Local 109 (Hudson Grievance)1 which is now widely regarded as the leading arbitral decision considering the Bill 168 amendments. This is followed by a review of the recent Ontario Labour Relations Board ("OLRB" or the "Board") decision in Hydro One Inc. v. CUSW2. Two civil court decisions, Shakur v. Mitchell Plastics3 and Phanlouvong v. Northfield Metal Products (1994) Ltd.4 are then considered. This is followed by a detailed summary of OLRB decisions involving applications under Section 50 of the OHSA alleging reprisal conduct on the part of employers.

The paper includes a note on Bill 132 which is the Ontario government's proposed new legislation dealing with amendments to various statutes with respect to sexual violence, sexual harassment, domestic violence and other related matters.

The concluding section of the paper sets out lessons and takeaways for employers that can be drawn from the case law.


(i) Kingston (City) v. Canadian Union of Public Employees, Local 109 (Hudson Grievance)

In Kingston (City) v. Canadian Union of Public Employees ("CUPE"), Local 109 (Hudson Grievance), the arbitrator considered what impact the amendments to the OHSA introduced by Bill 168 have on the manner in which discipline relating to workplace threats is treated. The arbitrator concluded that verbal threats constitute violence, not merely harassment. In light of Bill 168, arbitrators must attribute more weight to the seriousness of an incident in determining the reasonability of a particular penalty in cases where employees have made threats of violence. Furthermore, the employer's obligation to provide a safe workplace environment must also be considered in assessing whether dismissals should be upheld.

The circumstances giving rise to this case involved the dismissal of Donna Hudson (the "grievor"), a 47 year-old employee of the City of Kingston with 28 years of service. The grievor was discharged for uttering a death threat against John Hale, a colleague who happened to be president of CUPE Local 109 (the "Union"). The grievor admitted to having an anger management problem and had received discipline for incidents relating to her explosive temper in the past.

In September 2009, the grievor participated in training programs related to workplace violence and safety. In July 2010, as part of a settlement involving her previous grievances, the grievor attended anger management counselling. She reported that the counselling had been very helpful. Two days following the completion of her counselling, the grievor confronted Hale during a meeting and made a death threat against him.

The grievor accused Hale of trying to damage her career, and accused a former steward, a friend of Hale's who was recently deceased, of the same behaviour. Hale told the grievor not to talk about his friend because he was dead, to which the grievor replied "yes, and you will be too." Hale reported the incident, and an investigation ensued. The grievor denied that she had threatened Hale's life. Hale expressed that he was nervous about the threat, and feared what would happen to him and his family if the grievor were dismissed. He eventually reported the threat to the police at the insistence of his wife. After investigating the incident, reviewing her file, and noting that the grievor had just completed anger management counselling and yet continued to behave inappropriately, the employer made the decision to discharge her for cause.

The Union filed a grievance on her behalf, and submitted that Bill 168 did not create a zero-tolerance policy for workplace violence or harassment. The Union claimed that discipline must be proportionate and progressive and, given the grievor's length of service, discharge was inappropriate in this case. However, the employer maintained that the seriousness of the incident irreparably damaged the employment relationship. Of further import, the grievor had received training regarding workplace violence and had undergone anger management counselling to no avail. The employer submitted that dismissal was therefore the appropriate response in the circumstances.

The arbitrator concluded that discharge was warranted. First, the arbitrator made a factual determination that the grievor had made a death threat, for which she remained unapologetic and did not accept responsibility. Second, the arbitrator considered the purpose of Bill 168 and its effect on the employer's obligation to prevent workplace violence, including threats of violence.

The arbitrator identified four principal ways in which Bill 168 had affected the assessment of the reasonability of employee discharges similar to the one in the instant case. First, it clarified that arbitrators must take threats in the workplace more seriously. The arbitrator noted that a death threat constituted real violence, not just harassment, and she underscored the gravity of such threats.

Second, Bill 168 changed the way that employers and workers alike must react to threats in the workplace. The employee has an obligation to report such incidents, and the employer must take direct action to address allegations of threats. The arbitrator was careful to point out, however, that the employer cannot engage in an automatic response to such violence. The employer's response must still be reasonable, informed, and proportionate.

Third, Bill 168 impacted how an arbitrator must assess the reasonableness of the penalty for making threats in the workplace. The arbitrator concluded that the usual factors articulated in Dominion Glass Co. and United Glass & Ceramic Workers, Local 2035 (i.e. who was threatened or attacked?; was this a momentary flare-up or a premeditated act?; how serious was the threat or attack?; was there a weapon involved?; was there provocation?; what is the grievor's length of service?; what are the economic consequences of a discharge on the grievor?; is there genuine remorse?; has a sincere apology been made?; and has the grievor accepted responsibility for his or her actions?) are still relevant. However, more weight must be given to the seriousness of the incident in light of this new legislation.

Fourth, Bill 168 added workplace safety as an additional factor that must be considered in assessing the reasonability and proportionality of the employer's disciplinary response. The critical question is: "to what extent is it predictable that the misconduct will be repeated"? The purpose of this inquiry is to gauge whether the employee could conduct herself in the workplace in a manner that is safe for others moving forward.

After considering all of the factors in light of the evidence, the arbitrator decided that the grievor's discharge should be upheld. The determinative factor was that the safety of the workplace would be at risk if the grievor were reinstated. There was no evidence before the arbitrator that anything had changed in the grievor's attitude or conduct. Significantly, the grievor had not taken steps to control her anger, had not accepted responsibility, and had not shown any remorse for her behaviour. The grievance was therefore dismissed.

(ii) Hydro One Inc. v. CUSW

Hydro One Inc. v. CUSW involved a grievance referred to the OLRB under section 133 of the Labour Relations Act, 1995.6 The grievance concerned whether the unpaid suspension and ultimate discharge of the grievor, Wendi Allan, were justified.

The grievor alleged that she had experienced discriminatory treatment throughout her employment and had been forced to work in a poisoned work environment for many years. The Board dealt with the referral as a grievance of the grievor's discharge, and rejected the notion that allegations about discrimination and a poisoned work environment were independent issues. Rather, it treated these allegations as going to the issue of mitigation and remedy only.

The grievor worked as an electrical journeyperson for Hydro One Inc. ("Hydro One"). At the date of her discharge, she had been working in this position for approximately five months at the Manby Transfer Station ("Manby") in Toronto. The Board accepted that while she was an apprentice, the grievor was "subjected to inappropriate and offensive conduct ... which may well have amounted to gender harassment." The grievor also gave evidence about other incidents of inappropriate conduct and "sexist talk among the crews," but the Board noted that these allegations were vague and that the grievor never filed a formal complaint.

The grievor also testified about unpleasant sexist behaviour on the part of Carl DeKoning. The grievor worked with Mr. DeKoning when she was an apprentice, and testified that, back then, he "talked down" to her and demonstrated certain attitudes about women generally. On a later occasion while working at Richview Transfer Station ("Richview"), the grievor observed Mr. DeKoning performing a task that she felt endangered another worker and she responded by calling Mr. DeKoning "a f[*]cking idiot". She received a written disciplinary warning for insubordination, but also received an assurance from her then supervisor that she would not be re-assigned to Richview (where Mr. DeKoning remained) and that Mr. DeKoning would not be assigned to Baywood Panel Shop (where the grievor was then assigned).

In 2011, the grievor was transferred to Manby. Shortly before this transfer, she had been accused of threatening a co-worker, resulting in a police investigation but no charges. There was no evidence that Hydro One was aware of this accusation or that it was a factor in the grievor's transfer.

On August 30, 2011, she was paired to work with Crystal McFadyen. Mr. DeKoning was also working at Manby that day and, upon seeing him, the grievor asked her supervisor why "that f[*]cking [*]sshole" was there. The grievor also told Ms. McFadyen that Mr. DeKoning was following her, and she was visibly shaken and crying at one point. At some point during the morning, Ms. McFadyen offered to accompany the grievor to the washroom. The grievor declined, telling Ms. McFadyen "Don't worry about me. I carry weapons." Ms. McFadyen was surprised and concerned, and reported the incident to the Electrical Foreman In Training, Mike Turner. Ms. McFadyen asked Mr. Turner not to disclose the comment to the foreman, Andrew Banks, until she had an opportunity to go back to the grievor to clarify what she meant.

The grievor later told Ms. McFadyen she meant the tools she carries, such as an electrician's knife and spud wrench. Later in the day, Ms. McFadyen noticed the grievor was having trouble using a pair of pliers. As a joke, the grievor told Ms. McFadyen, "I guess I'll have to sharpen my weapons." In the afternoon, upon encountering some wasps, the grievor told Ms. McFadyen "it would feel really good to kill something today" and jumped at the task of applying insecticide. Ms. McFadyen insisted this comment was not conveyed in a joking manner.

Late in the afternoon, the grievor met with her union representative, David McParland, Mr. Turner and Mr. Banks on an unrelated matter. During the meeting, the grievor raised the issue of Mr. DeKoning and again asked why "that f[*]cking idiot" was on the worksite and complained he was following her. She then said she had a knife. After a pause, she explained she had a knife because she was an electrician. Mr. Banks then said, "Well, we all have knives." At the end of the meeting, the grievor asked if she could go home, and was permitted to leave. The next day, Mr. Banks and Mr. Turner conducted an investigation into the allegation that Mr. DeKoning was following the grievor. On September 1, 2011, the grievor was suspended without pay pending an investigation into the allegedly violent comments she made to Mr. McFadyen, and later to Mr. Banks and Mr. Turner.

Hydro One hired an external investigator to investigate the comments allegedly made on August 30, 2011, and the grievor's workplace behaviour generally. The grievor was interviewed on September 23, 2011. The investigator concluded that the grievor had violated the company's Code of Conduct by engaging in harassing behaviour and by making violent comments. The grievor responded to the investigator's report by letter on November 1, 2011. On November 11, 2011, Hydro One discharged the grievor for cause.

The Board held that the discharge was not discriminatory, but that it was excessive in all of the circumstances. The Board considered the decisions in Kingston and Toronto Transit Commission and ATU, Local 113 (Merolle), Re,7 noting that these decisions were "[m]ore to the point" as they were decided following the Bill 168 amendments to the OHSA.

In considering the Bill 168 amendments, the Board held that they "make clear that, if there ever was any doubt, workplace violence, including threats of physical force, is a very serious matter indeed." However, the Board rejected the assertion that every act of workplace violence should result in dismissal of the worker in question. Citing National Steel Car Ltd.8, a case decided after Kingston, the Board held that the OHSA does not prescribe any particular penalty for workplace violence, and that arbitrators are not precluded from assessing the degree of seriousness of the particular instance of workplace violence.

The Board held that the grievor's comment that she "had a knife" was made in the context of her complaint about the presence of Mr. DeKoning at Manby and was capable of being interpreted as a threat, and that this constituted workplace violence under the definition in the OHSA. The Board held that while the grievor's comments were unacceptable and inexcusable, they were at the less serious end of the spectrum of workplace violence and did not warrant automatic dismissal. Among other things, the Board noted that the comments did not amount to a death threat and that it was not an imminent threat, as the grievor was permitted to return to work the next day.

The Board ultimately concluded that the grievor's conduct warranted serious discipline, but that discharge was excessive. The parties initially tried to resolve the issue of remedy on their own. When they were unable to come to an agreement, they returned to the Board for a decision on that issue. The Board ultimately ordered Hydro One to reinstate the grievor without back pay, but also without a loss of seniority. The Board further ordered that her discharge be removed from her disciplinary record and a 30-day suspension be entered in its place.

To continue reading this article, please click here.


1 [2011] O.L.A.A. No. 393

2 2014 CarswellOnt 10678 (Ont. L.R.B.); 2015 CarswellOnt 3431 (Ont. L.R.B.).

3 2012 ONSC 1008

4 2014 ONSC 6585.

5 [1975] 11 L.A.C. (2d) 84

6 S.O. 1995, c.1, as amended ("OLRA").

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Hayley Peglar
S. Priya Morley
Events from this Firm
7 Dec 2017, Webinar, Toronto, Canada

FEX Members Jeff Noble, BDO, and Caroline Abela, WeirFoulds LLP, invite you to a complimentary webinar series titled: All About Shareholders.

15 Dec 2017, Seminar, Toronto, Canada

WeirFoulds Partner Caroline Abela will instruct The Advocates' Society program, "Leading Your Case: Opening Statements and Examination-in-Chief".

30 Jan 2018, Seminar, Toronto, Canada

WeirFoulds Partner Marie-Andrée Vermette will instruct The Advocates' Society program, "Cross-Examination: Strategies for Success".

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions