Tuesday, November 26, 2013

Bill 168: OLRB Finally Refuses to Follow Investia

For over two years now, I've been posting a series of entries on the Ontario Labour Relations Board's early interpretations of the harassment provisions of Bill 168, and in particular the OLRB's leaning toward finding that it does not have jurisdiction to consider a reprisal application under s.50 of the Occupational Health and Safety Act based in allegations of employer reprisals for complaints of harassment in the workplace.

I've been highly critical of the approach that the OLRB took in the Investia decision, back in September 2011, and ever since then I've closely followed the developments in the doctrine - or the lack of development, as the case may be.  At long last, however, Vice-Chair Nyman released a decision this past Friday which expressly refused to follow the line of reasoning from Investia.  This stands as the first conclusive decision by the Ontario Labour Relations Board that it has jurisdiction to consider reprisal allegations rooted in a harassment complaint.

Background

Most Ontario employers are now required by the Occupational Health and Safety Act to implement a policy and program for complaints of harassment in the workplace.  And the core question in the Investia line of cases, simply, is this: If an employee makes a good faith complaint of harassment in accordance with the program, can the employer turn around and engage in reprisals against the employee (i.e. fire the employee) in response to the complaint without offending the Act?

Investia suggested that the question should be answered in the positive:  So long as the employer implements the required policy and program, it has complied with its statutory obligations regarding harassment.  What it does after that is outside the Board's jurisdiction to second-guess.

I argued that this was wrong.  And I so argued repeatedly, in at least eleven entries, over two years.  I'll walk through the history briefly, and link all the entries, for anyone who really wants to get a more full appreciation of the background.

I first posted about Investia on November 18, 2011.  On that same day, another related decision, Ludlow, was released, which followed Investia.  I posted about that on November 24, 2011.  Ludlow seemed to settle the issue, at least until it could be dealt with by the Divisional Court.  But in January 2012, the PPL decision was released, which appeared to treat the question as still being open, but dismissed the case on other grounds.  I posted about PPL on January 11, 2012.  On January 26, 2012, I posted about the Carpenters case, where the Board determined that the Investia doctrine didn't protect an employer who lacked the statutory mandatory policy and program.  My next entry on the topic was February 27, 2012, after being quoted in a Law Times story on the topic.

On May 7, 2012, I posted about the Citi Cards decision, which still didn't conclusively answer the question, but at least stated conclusively that the question hadn't yet been answered (i.e. by Ludlow).  (City Cards involved a request by the employer to dismiss the application at a preliminary stage, which the Board declined.  The case later settled, meaning that there was never a consideration of the case on its merits.)

On July 17, 2012, I posted about another interim decision, in the Blue Line case, declining to answer the question one way or another.  Blue Line was later dismissed on other grounds, which I commented on in my August 27, 2012 entry.

On October 5, 2012, I posted about a couple more decisions, including the Craiglee decision and the Windmill decision.  The Windmill decision was concerning because it began a trend of following Investia as if it were now a binding authority, without further commentary on the principles.  The same thing happened in AGF, which I posted about on November 12, 2012.  Craiglee was again dismissed on other grounds, and while I was originally critical of the reasons, a later reconsideration decision admitted the flaw in the reasons I had identified, and corrected it (while still dismissing the application).  I posted about the reconsideration decision on July 9, 2013.

In a nutshell, following Investia and Ludlow, there were three types of decisions:  Decisions that followed Investia without further comments (AGF and Windmill); decisions that commented that the question wasn't yet resolved but were disposed of on other bases, and decisions that declined to dismiss the application on preliminary grounds, but never went (or at least, haven't yet gone) to a full hearing.

The New Development:  Ljuboja v. The AIM Group Inc.

(This case has now been posted on CanLII:  Click here for Vice-Chair Nyman's reasons.)

Strictly speaking, this decision, too, is preliminary.  But Vice-Chair Nyman went further than, for example, Alternate Chair Gee in Citi Cards:  Rather than simply saying that the question hasn't been decided so the matter should go to a hearing, Vice-Chair Nyman went so far as to outright reject parts of the Investia doctrine.

48. In paragraphs 14 and 15 of Investia, supra, the Board reasons that because the Act does not obligate employers to provide a harassment free workplace the Board has no jurisdiction or ability to inquire into an allegation that a worker was terminated because he or she made a harassment complaint to their employer.  With the greatest respect, I accept the applicant's argument that this analysis is flawed because it fails to consider the distinction between, on the one hand, complaining that the employer has failed to provide a harassment free workplace and insisting on that substantive outcome and, on the other hand, complaining that the employer has failed to comply with its obligation to provide a policy through which workers may make complaints about workplace harassment.  While employers are not obligated to provide the former, employers are obligated to provide the latter.  It appears from the reasons in Investia, supra, that this argument was not made to the Board in that case and therefore was not considered as part of the Board's reasons.

49. Accepting, as I do, that the Act requires employers to have an internal process for addressing instances and complaints of workplace harassment, it would entirely undermine that process if an employer is free to terminate a worker because he or she brought forward a complaint of workplace harassment in compliance with that process.  An interpretation of the Act that finds employers are obligated to create and maintain a policy by which workers may bring forward complaints of harassment but are nevertheless free to terminate, or otherwise penalize or retaliate against, any worker for having actually made a complaint under that policy is, in my view, untenable.  To interpret the Act in this manner would be to strip the employer's obligation to have a program to implement their workplace harassment policy through which workers may complain of any meaning.  Surely the Legislature did not intend in subsection 32.06(2) to spell out the obligation on employers to include measures and procedures for workers to report incidents of harassment at their own peril?  Surely the Legislature did not envision that, in requiring employers to describe how they will "deal with" complaints of workplace harassment in subsection 32.02(2)(b), employers would be free to terminate the complainant merely because he or she had the temerity to complain about a course of unwelcome and vexatious comment or conduct?

50. An interpretation that allows employers to penalize or retaliate against workers who make a workplace harassment complaint would entirely undermine the procedural mechanism that the Act creates through which harassment issues can be brought forward in the workplace.  If workers can be terminated for making a complaint that the employer's legislatively imposed policy enables them to do, then only the most intrepid or foolish worker would ever complain.  In practical terms, there would be no measure or procedure for making a complaint of harassment.  Moreover, the occupational health and safety value...that caused the Legislature to impose this obligation on employers would be eviscerated.

51. The corollary to this is that a worker who makes a workplace harassment complaint to his or her employer is seeking the enforcement of the Act because the worker is seeking to have the employer comply with its obligations to enable the worker to make the complaint.  Alternatively the worker is acting in compliance with the Act by accessing the statutorily prescribed mechanism by which they are able to bring forward complaints of workplace harassment to their employer.  Either way, the worker is seeking enforcement of the Act or acting in compliance with the Act, thereby bringing them within the ambit of the protection of subsection 50(1) of the Act.

52. The alternative is to interpret the Act as requiring employers to do no more than create a workplace harassment policy and post it in the workplace.  I am unable to find that that is all Part III.0.1 obligates employers to do.  First, such an interpretation is entirely devoid of any health and safety purpose and thus does not accord with the general rule of statutory interpretation.  Putting a paper on the wall with an illusory policy has no utility or effect in the establishment of minimum occupational health and safety standards.  [Bold emphasis is added; Italic emphasis is in original]
Temerity.  What a great word.

Vice-Chair Nyman proceeds to conclude that the statutory language requiring the 'implementation' of the policy "must include some active steps in carrying out the policy or giving effect to it."  Therefore, the Act actually obligates the employer to comply with its own policy, leading to the conclusion that when an employee makes a complaint, this is standing on a right under the Act.  While he circles back to the same point in a few different ways, I think this is the best illustration of it:  The bottom line is that the Act does not stop at requiring an employer to post the policy; the Act requires the employer to follow the policy, and a request that they do so triggers the Act's anti-reprisal protection.

While there is more to be said about the decision, that's the most important take-away:  The question is whether or not the Act prohibits reprisals against workers for making harassment complaints.  The answer is yes.  "I decline to follow Investia, supra, to the extent that it stands for the proposition that the Act does not prohibit employers from penalizing or retaliating against workers for making a complaint about workplace harassment under the employer's mandatory policy."

Where the Decision Stops

Vice-Chair Nyman did not fully disagree with Investia, however, concluding that it correctly decided that the Act does not impose a substantive obligation to keep a harassment free workplace.

I still disagree with that.  I would argue that the minimalistic statutory requirements give employers a great deal of flexibility in how they approach harassment in the workplace, but in light of Bill 168 - as I have said before - it is incoherent to continue to view harassment as not compromising health and safety.

The Board's observations about the potentially-immense scope of such an obligation are not misplaced, but my view is that there are further nuances to be drawn - a 'standard of care' issue, if you will.  In general, when a physical hazard causes serious injury, employers are held to a pretty high standard, and it's pretty rare for them to not be held responsible for failing to proactively recognize and resolve the circumstances that led to the injury.  I would probably argue that it will be somewhat easier for an employer, in the right circumstances, to say that they had no reason to believe that further preventative measures were necessary.  If I'm harassed by a co-worker, but I never complain to management, and management never observes the harassment, then the employer can't reasonably be expected to act to resolve the issue.  (It isn't unlike the framework for employer responsibility for harassment on the basis of prohibited grounds under the Human Rights Code:  If management isn't part of the harassment, and reasonably doesn't know about the harassment, they aren't liable for it.)

(Note:  I would not argue that harassment triggers the right to refuse unsafe work.  That particular right specifically addresses physical hazards, and now the risk of physical violence.  It couldn't ever encompass harassment, simpliciter, nor should it.)

But the question of substantive obligations isn't particularly important in this context, in large part because it's outside the scope of s.50 anyways.  It's not a reprisal issue.

So there are distinctions to be made here, on the face of the decision.  Saying "I was harassed, I complained, and they kept harassing me" isn't going to sustain a reprisal complaint.  Nor will "I was harassed, I complained, and they ignored me".  These are both very different from "I was harassed, I complained, and management harassed me more because of my complaint".

(1) If an employer fails to create or post a mandatory policy, and the employee complains about the lack of a policy, and the employer penalizes the employee for it, this may give rise to remedies under s.50 of the Act.

(2) If an employer implements the mandatory policy and program, and then penalizes an employee for utilizing the process made available by the policy, this may give rise to remedies under s.50 of the Act.  (This is the core question in this case, and the most important question in the Investia line of cases)

(3)  However, if an employee makes a complaint under the policy, and is not satisfied by the investigative process or the outcome of the investigation, this does not give rise to remedies under s.50 of the Act.  I do not disagree with this; it is uncontroversial.  But even on the face of this decision, there may be other remedies.

If, as Vice-Chair Nyman found to be the case, the Act imposes an obligation on the employer to comply with the process set out in its own policy and program, then the failure to do so still violates the Act.  It isn't a reprisal, and so s.50 would be the wrong process.  But, assuming Vice-Chair Nyman to be correct, it would be well within the jurisdiction of the Ministry of Labour's enforcement powers to remedy (though I suspect that getting the MOL to address such matters will be a whole other battle), may be implied into collective agreements and be appropriate subject matter for a grievance, and may bolster civil employment-related claims in non-union contexts.

Of course, I would go a step further and say that a substantive failure to meaningfully address workplace harassment likewise violates the Act.  But again, it wouldn't be appropriate subject matter for a s.50 complaint.

Other Notes

There are a number of interesting remarks in Vice-Chair Nyman's reasons.  Despite the fact that the decision ultimately doesn't go as far as I might argue, much of the logic echoes my own.  For example, consider the following passage from paragraph 41 of the decision:
On the other side, having imposed minimal explicit procedural requirements and no requirements regarding outcomes, some argue that the Legislature placed an unnecessary burden on employers and granted a hollow right to workers.
This very closely mirrors my initial critique of Investia from November 18, 2011:
It would require employers to incur the expense of developing policies, without contributing to employee protection in any meaningful way.
The above observation by the Vice-Chair is made in context of walking a fine line:  On the one hand, principles of statutory interpretation lead towards purposive interpretations, designed to give effect to the intentions of the Legislature and to avoid absurd results.  An argumentum ad absurdum - arguing "If you interpret the language this way, absurdity results" - is a legitimate argument when dealing with statutory interpretation.  On the other hand, the OLRB's jurisdiction is defined by the language used by the Legislature, and it is not the OLRB's role to rewrite legislation to make it better policy.  As the Vice-Chair put it at paragraph 39, "The wisdom of legislatively mandating a process with minimal explicit procedural requirements and no obligation with respect to outcomes is not an issue for the Board to comment on."  (Incidentally, in literary contexts, this is referred to as "preterition".  Though I note that the word has a different meaning in law.)

Finality:  I should note that even I would be reluctant to conclude that this decision finally settles the issue.  However, it is a well-considered decision to depart from the Investia doctrine, which I expect the Board to follow (for the most part), and which I hope and expect will stand up to judicial review.

As a closing note, I would also congratulate the applicant's counsel, Wade Poziomka, of the Hamilton firm Ross & McBride LLP, on a good win on an issue of importance.

*****

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.

2 comments:

  1. Yes indeed finally, and we should embrace it for what it is even though this is a product of "damage control." I say this because of the "collective" pressures that have been placed on the OLRB; due in part to people like you which has drawn much unwanted attention to the Investia absurdity. Vice-Chair Nyman does not go far enough as he still supports aspects of the Investia “reasoning” based on previous flawed logic and goes so far as to contradict his own criticism of the Investia case. To attribute the Investia “reasoning” strictly on obiter dicta, given the excessive analysis of the legislation in this case as it pertains to jurisdiction is absurd. Clearly, those who have read the Investia case regarded the Vice-Chair’s “reasoning” in that case as part of the framing of a decision that created jurisprudence on the OLRB jurisdiction in this matter. It will be interesting to see the final outcome, that is, if it is made public. This is, however, a first step in the right direction.

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  2. Unjust by Design – Ellis Donner-Prize Interview

    This eye-opening interview pierces the veil of illusion and the rhetoric of tribunal independence, including the OLRB and as such raises questions surrounding all of the absurd interpretations of Bill 168 by the OLRB.

    http://www.youtube.com/watch?v=jc6aU6ddP4M

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