Canada: Hindsight Is 20/20 – Employer Obligations Under The Workplace Violence Provisions Of The Occupational Health And Safety Act

Employers across the province are likely aware that they have a duty to take certain steps to protect their employees from violence in the workplace. They must assess the risk of workplace violence, create and maintain a policy, train their staff, and take all reasonable precautions in the circumstances to prevent violence. But are employers expected to anticipate every possible scenario that could take place? Will an employer be found guilty under the Occupational Health and Safety Act, 1990 (the "Act") based on the Court's ability to view the situation with the 20/20 vision of hindsight?

Any time violence occurs in the workplace, it is disturbing and emotional, and there may be a sense that the employer should have done something to prevent it. However, the legislation does not require employers to be omnipotent.

In the recent decision Ontario (Ministry of Labour) v Royal Ottawa Health Care Group ("Royal Ottawa"), one of the first in the province interpreting the workplace violence provisions of the Act added by Bill 168, the Court confirmed that in regard to employers' obligations under these provisions, "not every accident or workplace injury implies fault".

The Facts

On July 5, 2012, a psychiatric patient enrolled in a recovery program at the Royal Ottawa Mental Health Centre became violent. Patient X was being treated for schizophrenia when he attacked several nurses without provocation or warning. Patients had to be assessed as stable to be admitted to the recovery program. Although Patient X had only been admitted after his fourth request, he had been doing well and had even taken part in an unsupervised visit to the local Walmart days before the attack. During the incident, Patient X punched and strangled several nurses, including those who had come to the aid of the victim of the initial attack, badly injuring some of them.

Procedures for Summoning Immediate Assistance

The employer was charged under three sections of the Act. The first charge was under s. 32.0.2(2)(b) - failing develop and maintain a program to implement a policy with respect to workplace violence, with measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur.

The Crown claimed that the nurses were unable to call for help immediately because there was no phone in Kardex room, where the attack first began, and the nurses had no personal panic alarms or emergency phones. A Code White could only be called using a regular phone, and some of the offices where phones were located were locked. The Crown claimed that the response was not "immediate" because some of the designated responders came from other buildings, and staff had never done mock Code Whites exercises.

The Court noted that there was no dispute that the employer had a Code White policy for psychiatric emergencies, which included how to de-escalate a situation and how to summon assistance. The Crown's focused on alleged deficiencies of the policy, but the Court noted that is not the subject of the charge under the Act.

The Court found that there was a policy in place for summoning assistance, and the nurses did in fact summon immediate assistance by using it. There is no definition of "immediate" in the Act, and the Court noted that it must "look at the series of events and come to the conclusion of immediate in the circumstance". The Court remarked that some of the responders were other nurses in the program who reacted within seconds, either by approaching the patient or by using the phones to call a Code White, which summoned responders from other buildings. Ultimately, the Court dismissed the first charge.

Instruction and Supervision

The employer was also charged under s. 25(2)(a) of the Act with failing to provide information, instruction and supervision to a worker to protect the health and safety of the worker. The Crown argued that there were deficiencies in several areas of worker training, many workers had never received refresher training, had never done mock Code White exercises, and several workers claimed that they had never received training on how to respond in a violent situation at all.

The Court reviewed the evidence, and found that the nurses involved had received the training, and that the training was effective in that they had known what to do in the situation. The Court also noted that although the employer did sometimes provide refresher training, it wasn't required to do so under this section of the Act. Further, the employer had not done mock Code White drills, but this was a suggestion to further implement the policies; it was not required by this section of the Act. As such, the Court dismissed the second charge.  

Every Precaution Reasonable in the Circumstances

The employer was also charged with failing to take every precaution reasonable in the circumstances for the protection of the worker under s. 25(2)(h) of the Act. The Crown argued that there was no phone in the Kardex room, no emergency buttons or red emergency phones, no personal alarms for nurses to wear (although staff in other Royal Ottawa hospital buildings had emergency phones and personal alarms). Further, the Crown noted that many of the rooms had only one door and no other way to exit in the event of an emergency, and some of the doors required a key to open, thereby preventing access to some of the phones, and that no security guard was present in the recovery unit.

After the incident, the hospital made all of the above changes, many of which had also been recommended by the inspector based on employee feedback: another exit was added to the Kardex room, the key locks were changed to swipe card entry, emergency intercoms were installed, a phone was placed in the Kardex room, workers were given personal alarms to wear, and mock Code White drills were carried out.

The Court found that while the employer instituted these recommendations, it didn't mean that they were requirements under this section of the Act. The Court noted that the inspector's role is not to tell an employer what specific measures should be in place; it is simply to ensure that that they have measures in place that meet the requirements of the legislation.

The Court noted that there were a number of phones in place at the time of the incident, that personal alarms wouldn't necessarily have been helpful, and that the nurses could have closed and locked doors to the nursing station and Kardex room to keep Patient X out, but they did not do so. While some responders had to come from another building, there were six individual responders in the relevant unit and four of them responded immediately. Further, there was no evidence that recovery units usually have security guards at all and no evidence it would have helped if they did in this instance. The third charge was ultimately also dismissed.

The Takeaway

The Court acknowledged in this case that the Ministry of Labour has the luxury of looking at instances of workplace violence after the fact, and determining what actions could have been taken and what would have happened had different policies or procedures been in place. However, as is apparent from the decision, this is not the standard that employers are held to under the legislation.

So far, prosecutions against employers under the workplace violence provisions of the Act seem to have arisen primarily in the healthcare sector. It remains to be seen whether they will become commonplace in other industries, and it will take several more decisions to determine any patterns in the jurisprudence.

That being said, it is possible to make some valuable observations based on this case:

  • Charges related to deficiencies in employer instruction, supervision, and training are typically some of the most difficult to defend.  It can be difficult to predict what the courts will deem to be sufficient. Interestingly, in Royal Ottawa the Court determined that while refresher training can be helpful, it is not a specific requirement under s. 25(2)(a) of the Act. While this is true, it is notable that in many other cases, courts have held the lack of provision of refresher training to be fatal to employers under this provision. As such, it would be prudent for employers to consider periodically refreshing and updating staff on workplace violence policies, even if it seems that staff are aware of the policies and procedures already.
  • It can also be difficult to determine how a court will rule on whether an employer has taken every precaution reasonable in the circumstances for the protection of the worker under s. 25(2)(h) of the Act. This case illustrates, however, that employers need not be perfect in order to be found to have been duly diligent. The Court enumerated the measures put in place by the employer in Royal Ottawa, and found them to have been reasonable in the circumstances, despite the fact that employees in other units of the hospital had additional safety measures not present in the recovery unit. This illustrates that by genuinely turning their minds to the circumstances of their workplaces, employers should be able to comply with s. 25(2)(h) by instituting measures that are reasonable, not necessarily ideal.

At the  30th Annual Employer`s Conference  presented by Stringer LLP, employment lawyer Ryan Conlin will provide employers with guidance on changes to the Occupational Health and Safety Act, and how to comply with the latest requirements for dealing with workplace violence. The Employer`s Conference will take place at Toronto Congress Centre on November 16, 2016. We look forward to seeing you and helping keep you abreast of the changes in employment law that you need to know!

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.

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Amanda D. Boyce
 
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