Growing Inconsistency on Bill 168

Many of you know that I've been following the OLRB's jurisprudence on Bill 168, regarding whether or not a reprisal for a harassment complaint offends the anti-reprisal provisions in the Occupational Health and Safety Act.

The Board started out, in the Investia case, with a 'probably not'.  Vice-Chair McLean put forward an analysis suggesting that the Board should not hear such cases, but ultimately decided the case on other grounds.

Vice-Chair Serena, in the Ludlow case, accepted and applies the Investia analysis.  However, the Board has since had several other cases come before it, where the Board looked at Investia as still being up for discussion, and undecided, and every case has been decided on other grounds.

Vice-Chair Kelly, Vice-Chair Anderson, and Alternate Chair Gee have looked at several of these cases, and have consistently looked at the question as being "not yet decisively determined by the Board."  (That particular quotation is Alternate Chair Gee's from the Citi Cards Canada Inc. case.)  Vice-Chair Rowan dealt with a similar case where the employer didn't have a harassment policy, and distinguished that case from Investia.

However, there's a new and slightly alarming decision by Vice-Chair Wilson, in Nunes v. AGF Albrecht, stating that "The Board has determined that it does not have jurisdiction to inquire into a harassment complaint or an allegation that an employee has been dismissed for making a harassment complaint known to the employer.  See generally Investia...; Blue Line Transportation...."  The same text occurred in the same Vice-Chair's decision in Windmill Cabinets, also quite recently.

Whichever way the Board ultimately comes down on the question, it is very clear that neither Investia nor Blue Line Transportation is the final word on the topic.  The analysis in Investia is clearly obiter, clearly identified as such, and has been recognized as such by numerous decisions since then.  Blue Line Transportation is different, standing for the relatively uncontroversial proposition that, even if Investia is wrong and reprisals for harassment complaints are prohibited, that still doesn't give the Board jurisdiction to inquire into harassment complaints in the absence of reprisal.

While I might have seen Ludlow as being a final word (subject to judicial review, of course)...it wasn't, and hasn't been treated as such.  All things considered, I would respectfully argue that Vice-Chair Wilson is incorrect to treat the question as being settled.  (That contention is, of course, separate and distinct from the argument I have frequently explained that the Investia analysis ought not to be followed.)

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