One of the biggest questions which emerged when the Bill 168 harassment provisions became law was whether the OLRB would be inundated with “reprisal” complaints related to harassment. Prior to the Bill 168 amendments, the OLRB had historically declined to hear harassment cases (even though a technical argument could be made that workplace harassment was covered by the “general duty clause”).
In the first major decision on this issue, the OLRB commented in Investia Financial Services Inc. and Industrial Alliance Insurance and Financial Services Inc. 2011 CanLII 60897 (ON LRB) that the Bill 168 harassment provisions do not give the Board authority to deal with a reprisal complaint where it is alleged that an employer committed a reprisal against a worker because the worker complained of harassment.
The Board noted that the Bill 168 harassment provisions only require the employer to implement a harassment policy/program and to train workers on contents of same. The Board commented that section 50 complaints concerning harassment were likely confined to circumstances where the employer breached the legal obligation to have a policy/program in place and implement training for workers. It is important to appreciate that the Board held as fact that the Applicant was not harassed within the meaning of the OHSA and thus the comments on this issue were speaking of a hypothetical case where harassment may have actually occurred (referred to by lawyers as “obiter” comments).
The approach by the OLRB in Investia, made it very difficult for almost any type of harassment complaint to be addressed under section 50. In Harper v Ludlow Technical Products Canada Ltd, 2011 CanLII 73172 (ON LRB) the OLRB referred to the reasoning in Investia and appeared to categorically determine that complaints about harassment could not be brought under section 50 of the OHSA.
However, there may to be at least some question at the OLRB with respect the scope of section 50 and harassment issues. In Walters v. PPL Aquatic, Fitness and Spa Group Inc., 2012 CanLII 77 (ON LRB), the Board stated it had “…determined categorically” in Ludlow that it did not have jurisdiction over harassment complaints, but went on to briefly analyze the case on the basis of an assumption that there was a protected right to complain of harassment without reprisal under the OHSA. The Board did note that previous cases have “…suggested” (rather than determined) that no such right exists.
Therefore, it seems that it may be possible for Applicants to argue that the Board has not definitively closed the door on adjudicating harassment cases under section 50 of the OHSA. However, the general tone of the cases from the OLRB have made it clear that Applicants are going to have an uphill battle making the case that the OLRB should hear harassment-related complaints.
It is our view that is highly unlikely that there will be many complainants who are represented by counsel who chose to pursue harassment complaints under section 50. It seems all but certain the OLRB will soon definitively rule that harassment allegations will not be heard under section 50. It is likely that counsel will choose to pursue harassment complaints in the myriad of other legal forums where such cases can be heard.