Harassment-Free Workplace Obligations - Still Up for Debate

I've posted several times on the workplace harassment consequences of Bill 168, and was quoted in the Law Times about it.  To put it briefly, though I suggest reading my previous posts for a better understanding of the issue (Feb 27, Jan 26, Jan 11, Nov 24, Nov 18), Bill 168 amended the Occupational Health and Safety Act to require employers to implement policies and programs regarding harassment in the workplace, and there's some question as to how far that obligation goes.  At its simplest level, the question boils down to this:  Do employers now have a substantive obligation to provide a workplace free from harassment?  (In reality, there are several much more nuanced questions - Must the employer follow its policy in any particular manner?  Is an employer precluded from engaging in reprisals for good faith complaints under the policy?  Must an employer actually respond reasonably and in good faith to such complaints?  But I suspect that, of logical necessity, all of these questions will have the same answer, one way or another.)

Almost all the cases are reprisal cases - I make a harassment complaint, then my employer fires me.  So really, the question we're looking at, in the most direct sense, is whether or not reprisals are prohibited.

The initial jurisprudence has leaned towards a negative response, that the employer must implement the policy but need go no further.  This is based on a bluntly literal reading of the statutory amendments, and is not difficult to understand.  The premise was first advanced in September by Vice-Chair McLean in the Conforti case, but it was speculative in that case and he didn't actually decide the issue.  In Harper v. Ludlow, Vice-Chair Serena picked up on Vice-Chair McLean's logic and applied it, concluding that a reprisal due to harassment complaint, even if true, is not a violation of the Occupational Health and Safety Act.  That seemed like it might be the end of the issue.

But it wasn't.

I was surprised to see the Walters case in January, in which Vice-Chair Kelly looked at a similar issue to Conforti and Harper and, despite noting those cases including that the Board in the latter case "determined categorically that it lacks jurisdiction", proceeded to say that it was "unnecessary to decide the question of jurisdiction in this case" because he didn't believe there was, in fact, a reprisal.  This suggested to me that the Board might be backtracking from the Conforti analysis, and that the door may still be open.  (A couple days later, Vice-Chair Kelly looked at the Parsons case and came to the exact same conclusion in that context - unnecessary to decide the jurisdictional question - without even mentioning Harper.)

As well, in late December there was the Murphy decision, in which Vice-Chair Rowan distinguished Conforti and Harper on the basis that Mr. Murphy's employer was already in violation of the Act by not having a harassment policy in the first place.

Then we have Vice-Chair Anderson in several cases, looking to Conforti, suggesting that the reasoning may be correct, but inviting submissions from the applicants on the topic.

More Recent Developments

The above is essentially just a brief summary of the evolution described in my previous posts.  And nothing fundamental has changed, except that the Board has continued on the same course, looking at Conforti as perhaps being persuasive, but not necessarily something that will be followed.  The more recent decisions have gone from omitting Harper to ignoring it completely.

Of particular interest is Alternate Chair Diane Gee's decision in Kazenel v. Citi Cards Canada Inc., in March.  As is the case in most of the above decisions, this was a preliminary decision, with the employer seeking to dismiss the application for lack of jurisdiction.  And in this case, the employer was unsuccessful.  Not that the Alternate Chair decided the jurisdictional issue, but she declined to dismiss the application at the preliminary stage and directed the employer to file its response to the application.

In coming to her decision, she noted the following:

It is questionable as to whether the Act imposes an obligation on an employer to keep the workplace harassment free (see:  Investia Financial Services Inc., 2011 Can LII 60897 (ON LRB)).  Accordingly, there is an issue as to whether, assuming without finding that the applicant was terminated for complaining about being harassed by her manager, such would amount to a violation of the Act.  This issue has not yet been decisively determined by the Board.

It's a concise way of summing up the issue, but the truly interesting point is the last sentence, which backtracks from Harper significantly.  This is a signal that, at least until the question is definitively answered - and Harper is not the definitive answer I initially thought it was - it may not be appropriate to dismiss reprisal allegations at a preliminary stage on the basis of the reasoning in Conforti.

My Thoughts

Those who read my previous posts will know that, from my perspective, this is a welcome change.  In my earlier posts I vigourously argued that Conforti is wrong, making the harassment provisions of Bill 168 into form without substance, and that in light of Bill 168 the Act can no longer be read as not treating harassment as a risk to workplace health and safety.  (I would also suggest that the very literal reading of the provisions per the Conforti analysis ignores certain elements of the language.  A careful reading of the language, requiring that the mandatory policy set out "set out how the employer will set out and deal with incidents and complaints of harassment" suggest that there has to be some connection between what the policy says the employer will do and what the employer actually does - the language of the statute requires the policy to have some predictive value.)

It isn't unusual, either, to see administrative tribunals second-guess their early interpretations of new statutory amendments, particularly regarding jurisdictional matters.  The trouble is that the earliest interpretations are usually made in very summary proceedings with self-represented litigants, or sometimes even litigants who don't make any submissions.  (The summary nature of the proceedings is why these decisions make it out of the gate first.)  Subsequently, when you get more rigourously contested proceedings raising similar issues, the tribunals will start to hear new, better, and more sophisticated arguments on the issue.  Therefore, it is prudent for an administrative tribunal to maintain an open mind, and not be too firmly beholden to their own precedents.

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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.