Bill 168 Reprisals - A Door Still Open?

Last week, the Ontario Labour Relations Board released its decision in Walters v. PPL Aquatic, Fitness and Spa Group Inc., in which Mr. Walters alleged that he was fired as a reprisal for making a complaint of harassment.

I twice posted about this issue in November (links here and here), after similar complaints were dismissed.  In the first one, Conforti, Vice-Chair McLean found that there was no reprisal, but suggested that he did not believe that the OLRB has jurisdiction over such complaints, in any event:  The amendments to the Occupational Health and Safety Act require an employer to implement a harassment policy, but does not actually impose substantive obligations on the employer regarding accepting or dealing with complaints, and therefore a complaint is not protected against reprisals under the Act.

My second post followed the Harper decision, in which Vice-Chair Serena disposed of the case directly on the basis of Vice-Chair McLean's reasoning in Conforti:  The OLRB does not have jurisdiction.

Thus, I concluded that, until and unless the Divisional Court weighs in on this issue, the Board will stand by the decision in Harper.

In Walters, however, Vice-Chair Patrick Kelly implies that the matter may not be completely settled law, and declines to address the question because he finds as a matter of fact that there was no reprisal in the first place.

The Board has recently dealt with workplace harassment complaints under the new statutory provisions.  In the first case, the Board opined in obiter that it has no jurisdiction over an alleged reprisal for having complained of harassment.[1] More recently, the Board, relying upon the obiter from the Investia decision, determined categorically that it lacks that jurisdiction.[2]  In my view, it is unnecessary to decide the issue of jurisdiction in this case.  That is because, on a balance of probabilities, I conclude that PPL did not make any reprisal against Mr. Walters as a result of his having complained about harassment, or for any other unlawful reason.

He proceeds to make several findings of fact, including that Mr. Walters was fired (PPL had taken the position that he had resigned), which may be binding on the parties in subsequent proceedings.

This is all very strange.  The Board says that it does not need to decide whether or not it has jurisdiction, because on the facts the case the application must be dismissed anyways.  Of course, if the Board does not have jurisdiction, then where does its authority to make factual determinations originate?  Perhaps more importantly, McLean's logic in Conforti in large part turned on a floodgates argument, that the Board does not want to have to closely examine the facts in situations where the employee has alleged harassment and - for whatever reason - the relationship has continued to deteriorate afterwards.  Yet, in this case, instead of simply referring to Harper and Conforti and declining jurisdiction, the Board conducts a full assessment of the facts in order to avoid having to reach a conclusion on jurisdiction.

It is not uncommon for an adjudicator, faced with two questions, to look at the easy one first and the hard one only if it's still necessary.  This approach does not necessarily work well in theory where jurisdictional issues are involved, and so its use here definitely suggests that Vice-Chair Kelly regards the jurisdictional issue as a hard question.

So the very interesting question becomes this:  If Vice-Chair Kelly had, in fact, concluded that the dismissal was a reprisal, which way would he have come down on the jurisdictional issue?

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.