Pauline Au v. Lyndhurst Hospital
[1996] OLRB Rep. May/June 456
1517-94-OH Pauline Au, Applicant v. Lyndhurst Hospital, Responding Party
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W Pirrie and Pauline R. Seville.
APPERANCES: Pauline Au and Harry Kopyto for the applicant; Susan Bisset and Shirley Woodward for the responding party.
DECISION OF VICE-CHAIR K. G. O'NEIL AND BOARD MEMBER PAULINE R. SEVILLE; June 20, 1996
This is a complaint under the Occupational Health and Safety Act (the "OHSA").
The responding party employer made a preliminary motion to have the matter dismissed for want of a prima facie case. The employer challenged the applicability of the OHSA to the facts in question as they involved sexual harassment, as well as arguing that insufficient causal nexus had been pleaded to properly found the complaint. In a decision dated November 10, 1995, the Board dismissed the motion with very brief reasons and reserved its full reasons to the conclusion of the matter. The panel is now informed that an application for judicial review has been filed, although we have not seen any of the material filed in respect of the application. In light of that application, the Board now wishes to provide its full reasons for dismissing the motion.
The responding party asked that the matter be dismissed under Rule 24, which provides as follows:
Dismissal Without A Hearing
Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing. In its decision, the Board will set out its reasons. The applicant may within twelve (12) days after being sent that decision request that the Board review its decision.
The rule refers to the case as pleaded, the salient points of which are summarized below. For the purpose of the motion, they were assumed to be true and provable, although at the end of the day, they may be neither. Many important facts are vigorously denied by the responding party. Obviously, no finding of fact is being made by our setting out the allegations.
The pleadings
The applicant asserts three incidents of unwanted touching by her supervisor at work in late 1991 and early 1992 and a fourth in August, 1992 as well as other behaviour at work which are characterized as unwelcome attempts to get close to her physically and personally. In May, 1992, it is alleged that the supervisor had the applicant's office moved next to the men's washroom, as a subtle form of harassment so that he could walk past her office several times a day and that he then began coming in earlier than usual, so that he could create situations where he was alone with her.
It is alleged that tension and stress from the supervisor's conduct adversely affected the applicant's health, including nightmares, insomnia, headaches, crying and transient disorientation.
It is pleaded that reports to management about the alleged harassment commenced in January, 1992 and continued through March, 1993 and that in some of those reports she said she was concerned about her safety at work and "reprisal and retaliation" from her supervisor for complaining about the harassment.
It is alleged that over the year between February, 1992 and February, 1993, the applicant was subject to differential negative treatment by her supervisor in retaliation for having made allegations of sexual harassment against him, which retaliation was also reported to management. Incidents pleaded include difficulties over scheduling, withholding of information and arranging for her office to be in disarray after a phone relocation.
In September, 1992, management informed the applicant that her supervisor had acknowledged the four incidents of unwanted touching and agreed not to touch her again. Arrangements were made for a third person to be present at supervision meetings. In January, 1993, management informed the applicant that the supervisor had been counselled on human rights legislation and the hospital's policy and procedure in this regard, that the supervisor had acknowledged the incidents of unwanted touching but did not feel they were a breach of the Human Rights Code, and that they would look into the matter of the relocation of her office.
In April, 1993, managers and staff attended a two-day workshop on harassment in the workplace. In May, senior management took the position that the incidents alleged to be retaliation were reflective of a management style and did not constitute breaches of human rights or reprisals. It is alleged that although she continued to feel unsafe around her supervisor, the applicant put in no further complaints because senior management had refused to acknowledge that the incidents were reprisals or harassment.
In a requested amendment to the complaint it is alleged that the applicant was not aware that the OHSA could encompass sexual harassment when it became an issue at work.
In November, 1993, the applicant was terminated after a restructuring of her department while her former supervisor retained a social worker position. Neither her applications for employment in one of the new positions nor an application to do volunteer work were ever acknowledged. It is alleged that the reason given by the hospital for her termination, i.e., restructuring, was a convenient way to terminate staff it did not like, and that part of the reason for her specific termination was the allegations she had made of sexual harassment against her supervisor. It is pleaded that in reporting sexual harassment, the applicant was reporting an unsafe condition of work, thereby acting in compliance with the OHSA, sections 28(1) (a) and (d) and that the termination was in part a reprisal for that, as was the earlier negative treatment by the supervisor.
A complaint was filed with the Human Rights Commission on May 18, 1994, and this complaint was filed with the Board on July 28, 1994. This matter was originally scheduled to be heard in September, 1994, at which point the parties agreed to adjourn the matter. The matter was brought back on for hearing in July, 1995.
The Human Rights Complaint was withdrawn in August, 1995 after this panel asked for submissions on the issue of staying this application on its own motion in light of the existing proceedings at the Human Rights Commission.
The following portions of the OHSA are referred to below:
9.-(l 8) It is the function of a committee and it has power to,
(a) identify situations that may be a source of danger or hazard to workers;
(d) obtain information from the constructor or employer respecting,
(i) the identification of potential or existing hazards of materials, processes or equipment, and
9.-(30) the member shall inform the committee of situations that may be a source of danger or hazard to workers and the committee shall consider such information within a reasonable period of time.
25.-(1) An employer shall ensure that,
(a) the equipment, materials and protective devices as prescribed are provided;
(b) the equipment, materials and protective devices provided by the employer are maintained in good condition;
(c) the measures and procedures prescribed are carried out in the workplace;
(d) the equipment, materials and protective devices provided by the employer are used as prescribed; and
(e) a floor, roof, wall, pillar, support or other part of a workplace is capable of supporting all loads to which it may be subjected without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act.
(2) Without limiting the strict duty imposed by subsection (I), an employer shall,
(d) acquaint a worker or a person in authority over a worker with any hazard in the work and in the handling, storage, use, disposal and transport of any
article, device, equipment or a biological, chemical or physical agent;
(h) take every precaution reasonable in the circumstances for the protection of a worker;
- Without limiting the duty imposed by subsection (1), a supervisor shall,
(c) take every precaution reasonable in the circumstances for the protection of a worker.
- -(1) A worker shall.
(a) work in compliance with the provisions of this Act and the regulations;
(d) report to his or her employer or supervisor any contravention of this Act or the regulations or the existence of any hazard of which he or she knows.
43.(3) A worker may refuse to work or do particular work where he or she has reason to believe that,
(a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;
(b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself; or
(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.
- No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.
(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (I), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board in which case any regulations governing the practice and procedure of the Board apply with all necessary modifications to the complaint.
(3) The Ontario Labour Relations Board may inquire into any complaint filed under subsection (2), and section 91 of the Labour Relations Act, except subsection (5), applies with all necessary modifications as if such section, except subsection (5), is enacted in and forms part of this Act.
Provisions of the Human Rights Code are relevant by comparison:
5.-(l) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place or origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap.
7.-(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.
(3) Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person. 1981, c.53, s.6.
10.-(1) In Part I and in this Part
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
32.-(l) Where a person believes that a right of the person under this Act has been infringed, the person may file with the Commission a complaint in a form approved by the Commission.
The Parties' Arguments
The Employer
The responding party's position is that, much as it decries sexual harassment, it is not a hazard covered by the existing OHSA and a statutory amendment would be required to do that. Further, it is asserted that the facts as pleaded do not establish a causal nexus between any action in compliance with the OHSA and the discharge.
Employer counsel argues that the legislation shows by its wording that it was designed to deal with physical structures and the presence of objects or substances in the workplace, rather than people and their conduct or misconduct. The Board is asked to find that it was not meant to regulate interpersonal contact, harassment or stress. Counsel further supports the above argument by reference to the structure of the OHSA, Parts 3 to 10, (notably 10) and the list of matters on which regulations may be, and have been, made. An example is the WHMIS regulation on hazardous materials, in which physical substances are regulated, not people or their conflicts.
Counsel for the hospital sought to examine the proposition asserted by the applicant: that sexual harassment is a hazard that presents a risk and thus she acted in compliance with the OHSA under subsections 28(1 )(a) and (d) in reporting the existence of the hazard to her employer. Those subsections require a worker to work in compliance with the Act, and to report to the employer any hazard of which she is aware. This was juxtaposed for purposes of the argument with the obligation of management and supervisors to take every precaution reasonable in the circumstances for the protection of the worker (section 25(2)(h) and 27(2)(c)).
Counsel argues that the managerial obligation in section 25 (2) must take its meaning from section 25(l) because it is introduced by the words "Without limiting the strict duty imposed by subsection (1)...". When section 25(l) is examined, one finds the list from (a) to (e). Counsel asserts that all the components of this list relate to physical material and equipment, or the physical state of the workplace, such as things dealt with by the Building Code Act. Since section 25(2) is not introduced by wording such as "in addition to the duty in 25(l)", the duty in 25(2) should be found to relate to the same type of hazard, i.e., hazards relating to physical material and equipment. Counsel observes there is nothing to be found in either section about interpersonal con tlict. Thus, the duty to take precautions in 25(2) should be read as deriving its content from 25(l).
To illustrate her point, counsel refers to the obligation in section 25(d) to acquaint a worker with any hazard in the work. She asserts that if one accepts the argument that sexual harassment is a work place hazard covered by the Act, the employer would have to tell everyone that the alleged harasser was a hazard. This is argued to be an absurd result and fly in the face of the very delicate nature of the subject in which incidents often occur without other witnesses, and perception invariably plays a role. It is submitted that it would be devastating for this to occur even before any investigation took place. As to the claim that stress is the hazard, counsel queries whether the employer is to warn a worker that he or she might experience stress, to let the worker refuse to work, and to require that all the other workers be told about it? Where is the confidentiality of their medical information? Is the employer required to warn of possible stress every time it increases the level of production required? Similar arguments are made about the duty to disclose upon a work refusal, although the facts of this case do not involve a work refusal.
Counsel asserts that if the Board accepts complaints respecting interpersonal conflict, the type of "people problems" that the Human Rights Commission deals with everyday, there is no end to what management would have to tell employees to avoid being accused of not taking every precaution reasonable in the circumstances. The Board is urged to interpret the language of the OHSA in a manner to avoid these results.
Looking at section 25(2)(h) and 27(2)(c), counsel says the wording begs the question: what is the worker to be protected from? If sexual harassment is a hazard from which the worker must be protected, so would any of the prohibited grounds of discrimination in the Human Rights Code. Taken to its logical conclusion, other types of discrimination or harassment could lead to work refusals or health and safety complaints. In one fell swoop, all the employment-related discrimination sections of the Human Rights Code would find themselves under the OHSA. Why have the Code at all, queries counsel. There are broad remedial powers available under both statutes, and they should be interpreted to avoid two tribunals dealing with the same territory. There would be no need for the Human Rights Commission to deal with employment-related problems if the Labour Board asserts jurisdiction over this kind of problem.
Counsel submits that if sexual harassment were intended to be covered, it would be logical that the worker would have the protection of Part V, including the work refusal sections, which are the 'teeth" of the legislation. However, counsel argues that a reading of the work refusal language makes it clear that the refusal provisions would not be available to a person being sexually harassed. Section 43(3)(a)-(c) make clear reference to the use of any equipment, machine or device, and the physical condition of the workplace. None of these can be reasonably interpreted to include sexual harassment. Counsel observes that the Ministry of Labour's legal branch agreed with that reading of the sections in a 1982 interpretation bulletin, stating that the legislation was not designed to cover interpersonal conflict.
Employer counsel turned to jurisprudence from other tribunals, as there is no decided case on point in the Board's jurisprudence. First, Bliss v. Treasury Board, (1987), 6 C.L.A.S. 109, a decision of the federal Public Service Staff Relations Board (PSSRB). An employee feeling stressed by the difficult relationship he had with his supervisor refused to work under the parallel provisions of the Canada Labour Code. That wording is not as clear in its reference to the physical condition of the workplace as is the OHSA. Nonetheless, the PSSRB accepted the argument made by the employer before it to the effect that the provisions in the Code should be interpreted to mean a physical condition, and not to include stress. We are urged to follow the reasoning of the PSSRB and to dismiss the complaint on the basis that it does not involve a workplace hazard.
Counsel sought to distinguish Barmaid's Arms, [1995] OLRB Rep. March 229, a case where an employee was discharged after refusing to work because of threatened violence from a bar patron, and the Board found a violation of the OHSA. Counsel submitted that threatened physical violence is not sexual harassment in any event, and given that the arguments made before us were apparently not before that panel, the decision is not persuasive on the issue before us. We are asked not to take the further step and find that perceived sexual harassment is a workplace hazard.
The second prong of the employer's submissions was to the effect that there was no causal nexus between the applicant's discharge and the alleged harassment. Section 50 requires a causal nexus for a successful complaint. Counsel argues that on the facts of the case that are not disputed by the applicant, it simply could not have been true. Counsel observes that the complainant never sought to refuse work or to enforce the work refusal sections, notwithstanding continuing to bring complaints over approximately eighteen months. Further, she never reported any unsafe condition to the hospital's occupational health service nor gave the hospital any medical evidence that the environment of the workplace was having an adverse effect on her health. She was never off sick for more than a total of three days between November 1991 and November 1993. Further, there were no new allegations against her supervisor from March to November 1993. Thus, there were eight months between the last of her allegations and her dismissal due to a reorganization.
Employer counsel refers to Precision Engineering, [1994] OLRB Rep. May 596. In that decision, the Board dismissed a complaint where the applicant had not sought to invoke the OHSA or the regulations or to refuse to work, arguing that since the applicant did none of those things she should not be allowed to proceed.
Referring to Brunswick Minitig & Smelting Corp. v. Savoie, (1991), 6 C.O.H.S.C. 10 (N.B.C.A.), where an arbitrator's decision was reversed because he had not considered the question of causal nexus in a finding that a discharge was contrary to the relevant health and safety legislation, counsel argues the assumed facts here do not disclose a causal nexus and that the proceeding should be dismissed on that basis.
Counsel refers to a requested amendment to the complainant's pleadings dated September 12, 1994 which admits that she was not aware that the OHSA could cover sexual harassment. If she was not aware, counsel says it is absurd to find that she could be seeking its enforcement when reporting the harassment. Counsel says it flies in the face of any just system to be able to remain silent and only raise these matters after the fact.
For the Complainant
- It was argued on behalf of the complainant that the OHSA is a remedial statute which is deserving of a broad interpretation and that its purpose is to preserve the fundamental integrity of persons. There is nothing in the statute that suggests that the categories of harm have been closed, or that those mentioned were intended to be an exhaustive list or which prohibits the application of the OHSA to the impugned behaviour. It is submitted that health and safety concerns evolve, and that some may not have existed when the OHSA was introduced. The Board was urged to reject the "flood gates" arguments made, and what is characterized as the narrow and technical interpretation urged by the employer.
3 I. For the proposition that a hazard does not have to be specifically mentioned to be included in the ambit of the wording "every precaution reasonable in the circumstances", and that silence on a particular hazard does not need to be assumed to be a conscious decision to exclude the matter from the ambit of the OHSA, we were referred to a number of decisions by adjudicators on appeals from decisions of Occupational Health and Safety Inspectors: Inco Limited, File #AP9O-118, May 9, 1991; The District of Ha/ton and Mississauga Ambulance Service, June 4, 1990 File # AP 90-22, Westinghouse Caitada Inc., Nov. 14, 1985, (Jack Burns appeal) and the order of an inspector issued to the Municipality of Metropolitan Toronto, April 14, 1986, which said that "every reasonable precaution" shall include advice set out in the order as to locker, hygiene and eating facilities.
The applicant's representative presented various references in journals and other publications to the effect that sexual harassment is a hazard to health in that it may negatively affect a person's health. Employer counsel said she was agreeable that the Board take notice that sexual harassment may have detrimental effects on a person's health.
It was submitted that there is a broad spectrum of opinion on the subject of sexual harassment, but that the important point in this case is that whether or not one characterizes the behaviour of the supervisor as such, it resulted in the harm to the applicant's health to which she reacted in a bona fide manner. It was submitted that if the OHSA is not available as a vehicle of complaint, the documented reluctance of victims of sexual harassment to seek redress will be reinforced and their ability to deal with this health hazard will be lessened.
The applicant's representative referred to Board jurisprudence, such as Canadian Gypsum Construction, [1978] OLRB Rep. October 897, Bill's Country Meats Ltd., [1984] OLRB Rep. October 1549, Frankel Steel, [1985] OLRB Rep. August 1210, ArtShoppe, [1988] OLRB Rep. Aug. 729, and Crothers Ltd., [1990] OLRB Rep. November 1129 for the proposition that no magical words are necessary to invoke the OHSA, and that individuals may experience hazards differently.
It was submitted that no specific knowledge of the OHSA was required and by expressing her concerns to management that she was at risk, the applicant was complying with the OHSA. Further, it is asserted that if the applicant sincerely believed she was endangered, that is enough to bring the complaint within the ambit of the OHSA. It was argued that, ultimately, the issue is not whether objectively she was a victim of gender harassment, but whether she believed so sincerely. It was said that there was a danger in the employer's submission, in that, if specific knowledge of the OHSA is required, the employer could profit by his own malfeasance in not posting the legislation as required. It was submitted that the jurisprudence shows that there is a low threshold for the invocation of the OHSA because of the importance of the protection of workers' health.
Further, it was submitted that being incorrect in one's invocation of the OHSA or assessment of whether something is safe does not remove the protection of the reprisal sections. See Firestone Canada Inc., [1985] OLRB Rep. July 1044, Butler Metal Products, [1988] OLRB Rep. Oct. 1003 and Bilt-Rite Upholstering Co. Ltd., [1990] OLRB Rep. July 755.
As to why the Board should entertain this application when the Human Rights Code explicitly covers the subject, it is the complainant's position that there is nothing to prevent both from having jurisdiction. We were referred to a decision of a hearings officer at the Workers' Compensation Board in Claim 15878672-2, dated June 29, 1990, dealing with sexual harassment and of the Workers' Compensation Appeals Tribunal, Decision no. 636/91, dated January 28, 1992, dealing with sexual and racial harassment which are argued to be a recognition of the fact that dual jurisdiction can exist over the same facts under different statutory schemes. We were also referred to Lehman v. Davis, (1993) 1993 CanLII 5497 (ON CTGD), 16 O.R.(3d) 338, where a judge of the Ontario Court (General Division) declined to dismiss or stay a wrongful dismissal action pending a human rights inquiry. The judge was of the view that any question of double recovery could be dealt with as a remedial question. We are urged to prefer his view to that of the court in Ghosh v. Doing/as Inc., (1986), 1986 CanLII 2590 (ON HCJ), 57 O.R. (2d) 710, which granted a stay on the basis of concerns that the judge in Lehman v. Davis felt could be met.
The complainant's representative urges us to take into account the idea that the Board has a more comprehensive jurisdiction and greater remedial powers and that it is more likely to resolve the issue for others as well because of the power to post notices, for example. He cited the fact that the litigation was likely to be less protracted and expensive at the Board than at the Human Rights Commission, and that the complainant would have carriage of the litigation as she would not under the Code. Further, it was argued that the Board had more than adequate expertise to deal with a health issue containing a harassment aspect. However, in the complainant's submission, neither the Board nor the complainant should have to choose. The Board should simply deal with the aspect that is in its jurisdiction as there are different thresholds and purposes to the two pieces of legislation.
Although the applicant's representative argued that the Board could apply Human Rights concepts and standards, he said it was far from clear that it was necessary to make a finding that she was being discharged on the basis of sex to deal with the issue of whether she sincerely believed her health was in danger. If the board was concerned about the overlap in jurisdiction, the applicant's representative said that we should not refuse to exercise our jurisdiction. Rather, one proceeding, at the applicant's choice, should be stayed pending resolution of the other.
In reply to the employer's arguments about Barmaid Arms, cited above, that the behaviour of persons should not be included under the Act, it was submitted that once there is touching, the human being has become part of the physical condition of the workplace. The definition of physical condition will in the end have a large policy component and the fact that the traditional focus has been on toxic substances and physical things may be part of a male perspective inherent in the definition of hazards under the OHSA. It is his submission that there is no reason why the interpersonal behaviour of a manager that affects health should be considered less of a hazard than others more traditionally recognized since it may be equally toxic to health - the fact that the danger from sexual harassment may be more subtle does not make it any less pernicious.
It is argued that the results of having harassment or other activity prohibited by the Code under the OHSA where appropriate does not produce such absurd results as the employer argues. In section 25(2)(a) there is a requirement to provide information. It is submitted that there is nothing absurd about providing information about gender harassment. It is submitted that the nature of the hazard may define the content of the duty. The word "reasonable in the circumstances" will mean that the employer is entitled to be reasonable in how it brings the issue to people's attention.
As well, it is argued that whether or not the refusal sections are available is not determinative of this case. Moreover, it was argued that it might be a breach of the Charter to find that gender harassment was not within the ambit of the OHSA, that the fundamental importance of the Charter's guarantee of equal protection of the law for women should be an aid to interpretation on the question of whether this hazard, which affects women almost exclusively, should be recognized.
On the causal nexus, we are urged not to find that the mere passage of time between the complaints of harassment and the discharge warrants the dismissal of the complaint. It is alleged that management was upset by the applicant's persistence in reporting the allegations. It is alleged that the reorganization in the fall was the first opportunity for management to cloak their desire to get rid of her in a reason that could be said to have nothing to do with her reporting of sexual harassment. This issue cannot be evaluated without hearing the evidence, in the complainant’s submission. The law is clear that it does not have to be the only, or even the main, reason for the discharge. If any part of the decision to discharge was a reprisal for acting in compliance with or seeking the enforcement of the OHSA, then it is a violation.
In order to dismiss at this stage, it is submitted that the Board would have to find that it was impossible for the causal nexus to be made out, unavoidable that the case would fail. It is a question of fact that has to be tried. Once one accepts the fact as pleaded, we are urged not to conclude that there is no way she can succeed.
In reply, employer counsel emphasized that the hospital took no issue with the idea that sexual harassment can cause psychological and physical problems. Although counsel accepts that the OHSA is remedial legislation and should be interpreted broadly, she submits that the Board would have to go beyond that to amend the legislation to allow this complaint.
Counsel distinguished each of the cases cited by the applicant’s representative. She acknowledged that a worker can be wrong in the assessment of the danger and still have protection of the statute, as long as the hazard is under the OHSA. The reprisal provisions have to do with enforcing the statute. Counsel agrees that sexual harassment is a social problem, but observes that it is one for which the legislature has provided another forum.
As to Lehman v. Davis, cited above, counsel says it is inconsistent with other decisions in which the reasoning is sound. Where there are at least four possible I for this fact situation, i.e., the Human Rights Commission, the courts in a constructive or wrongful dismissal action, the Board under OHSA and the Workers Compensation Board, the OHSA should be read in a manner that does not countenance a multiplicity of proceedings.
In general, it is counsel’s submission that the hearing of this matter will be long and protracted and that it is completely unnecessary to hear the evidence in this matter.
We have considered this motion on two bases: Firstly, do the pleadings make out a case for the relief sought? Secondly, should we in the exercise of our discretion nonetheless decline to inquire into the matter?
Rule 24 exists so that the Board may terminate pointless or vexatious litigation. It is not productive of time, energy or good labour relations to allow litigation that is doomed to failure to proceed. However, the rule is not intended to be used to control novel or arguable but weak cases. It is for the cases that do not pass the minimum standard of being arguable.
The rule was not created in a juridical vacuum. There is a long history in the common law and English and Canadian procedural statutes of provisions for the striking out of pleadings that disclose no reasonable cause of action. The Supreme Court of Canada recently canvassed salient points of that history in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 and reinforced its view of the appropriate standard on preliminary motions to strike. It is that pleadings should be struck only where it is "plain and obvious" that the plaintiff's statement of claim discloses no reasonable claim, and is certain to fail, as opposed to unlikely to succeed. At p. 980, the Court says:
Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.
It is enough, said the Court, that the plaintiff has some chance of success. Where the success of the case depends on disputed facts, dismissal at the outset is not appropriate.
The Board has taken a similar approach under both Rule 24 and its predecessor, Rule 71. See,]. Paiva Foods, [1985] OLRB Rep. May 690. In that case the Board briefly reviewed its approach and said that its discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case "should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation can be established." Similarly see Caravelle Foods, [1983] OLRB Rep. June 875 where the Board stated the threshold as a reasonable or arguable case. In The General Hospital of PortArthur, [1986] OLRB Rep. Sept. 1218 the Board noted it should be cautious in exercising its discretion and do so only when the position was "manifestly untenable" and the fact that arguments may be novel, or the case difficult, should not stand in the way of a hearing on the merits. To similar effect see Elizabeth Balanyk, [1987] OLRB Rep. Sept. 1121.
Does this action have some chance of success? Is there an arguable case on the pleadings? The majority was of the view that there was, and thus dismissed the motion.
The way the motion was argued, the employer was essentially asking for a ruling on a question of law: Is sexual harassment a hazard covered by the OHSA? In our view it is neither necessary nor appropriate to answer that question at this stage. It is sufficient to find, as we have, that there is an arguable case that the question be answered in the affirmative, and/or that the complaint could be successful even if it is not.
Our conclusion that there is an arguable case that sexual harassment is covered by the OHSA rests on the fact that the OHSA consists of very general provisions, as well as the more specific ones referred to by employer counsel, which do arguably focus more on inanimate objects than people. The OHSA appears to have been deliberately designed to be flexible enough to respond to a myriad of fact situations and evolving knowledge, and/or appetite for regulation.
To start, the Board notes that the word "hazard" is not defined, while the terms "hazardous material" and "hazardous physical agent" are. The latter are terms given content only by regulation. By contrast, the word "hazard" is used in the OHSA in much more open-ended contexts. See, for example, the range of meanings possible in its use in sections 9(18)(a) and 9(30), involving a health and safety committee's role in identifying and receiving information on "situations that may be a source of danger or hazard", or section 9(18)(d)(i), involving its role in obtaining information on "potential or existing hazards, of materials, processes or equipment" or in the sections more directly relevant to the case before us, section 25(2)(d) - the duty of an employer to acquaint a worker with "any hazard", or that of a supervisor to advise of any existing or potential danger in section 27(2)(a) or of workers to report any hazard of which they are aware in section 28(d). It is at least arguable that the Legislature's choice of wording is flexible enough to include things other than physical conditions, objects or structures in the meaning of the word "hazard". It chose to use both the undefined form of the word and the terms, "hazardous material" and "hazardous substance". When the Legislature wished to confine the meaning of a particular kind of hazard it did so. It is at least arguable that this has significance for the meaning to be given to the undefined "hazard". And it is conceded by the employer that sexual harassment may be hazardous to health.
As to the employer's argument that this flexibility is foreclosed by section 25(1), it is not plain and obvious that this is the necessary or only valid interpretation. For example, the existence of section 25(c) which refers to the employer's responsibility to ensure that measures and procedures prescribed (i.e., set out in the regulations) are carried out, leaves the content of s. 25(1) subject to change at any time by regulation and thus it is at least arguable that the content of section 25(1) is not limited in the way argued by the employer.
As well, it is at least arguable that the introductory words of section 25(2) have a less limited meaning than that suggested by the employer, which was basically that section 25(2) would be limited by section 25(1). It is arguable that the wording "without limiting the strict duty imposed by subsection (I)" could mean instead that section 25(1) is not limited or eroded by section 25(2). The nature of section 25(2) makes it not unreasonable to suggest that those duties are independent of, even in addition to, those in section 25(1).
But in any event, the section relied on by the applicant as that with which she was complying in complaining of sexual harassment, section 28(l)(d), is not dependent on the content of section 25(1) for its meaning, although one would search for a harmonious reading of all the sections.
We have also taken into account that the law on sexual harassment as an occupational hazard is not settled. As is demonstrated from the authorities presented, various tribunals are in the process of determining where it will fit within or outside their particular statutory regime. None of the cases referred to as support for declining to hear this matter came to the conclusion without a hearing. And although the PSSRB has found, after a hearing, that sexual harassment is not covered by its legislation, the decision does not deal with wording analogous to that relied on before us, such as "acting in compliance" with the OHSA. The decisions that find stress disability from harassment compensable under The Workers Compensation Act, would suggest that it is not plain and obvious that stress and harassment are not occupational hazards in the ordinary or statutory meaning of the words. Indeed, the employer allows that sexual harassment can be damaging to health. See also Clark v. Canada, (1994) 3 C.C.E.L.(2d) 73, a decision of the Federal Court of Canada in a wrongful dismissal action where it was found that a female RCMP officer had suffered illness as a result of harassment by her male colleagues. We note that the nature of the claim which was the subject of the Supreme Court of Canada's decision in Huni' v. Carey Canada Inc., cited above, was an attempt to extend the law of conspiracy to an area in which it had not previously been applied.
We stress that none of the authorities are determinative, and that we are making no decision here about how the OHSA should ultimately be read in light of what the facts turn out to be. We are merely saying that we are of the view that there is an arguable case. The point of law is not plain and obvious, and thus should not be dealt with at this stage. See also MacDonald v. Ontario Hydro, (1994) 1994 CanLII 7294 (ON CTGD), 19 O.R. (3d) 529, upheld by the Ontario Court, General Division, Divisional Court, (1995) 1995 CanLII 10628 (ON CTGD), 26 O.R. (3d) 401 and Toronto-Dominion Bank v. Deloitte Haskins & Sells, (1991) 1991 CanLII 7366 (ON CTGD), 5 O.R. (3d) 417.
Even if sexual harassment is not a hazard intended to be covered by the OHSA, it is not plain and obvious that the application cannot succeed. This is because of the broad wording of section 50, the anti-reprisal section of the OHSA, as it has been interpreted by the Board. It is arguable that there is support in the jurisprudence for the proposition that one can be wrong about whether something is dangerous, or be ignorant or mistaken about the correct application of the QHSA, and Sti11
1OttedTfom reprisals for activity with a health and safety nexus. This too is an area of evo1viiii~&
and is not so plain and obvious as to be dealt with as a preliminary point of law. Facts are crucial, and most of the important facts for this aspect of the case are in serious dispute.
Further, the application of the provisions of the OHSA relative to work refusal or the duty of the employer to warn in facts involving sexual harassment are not areas of law on which there is any precedent, nor an area which is particularly suited to being developed without a firm factual basis. Moreover, even if the Board were to accept the argument that a work refusal is unavailable for a hazard that is not derived from the physical condition of the workplace itself, that would not be dispositive of the allegation that there was a hazard of a different kind. Nor is it dispositive of the allegation of reprisal for alleged compliance with the OHSA other than a work refusal.
As to the argument that insufficient causal nexus is set out, we are also of the view that the case is not sufficiently clear to warrant dismissal for want of a prima facie case. Especially given the reverse onus of proof, it is difficult to say that the causal nexus pleaded is insufficient. Although there is not the immediacy of time between the complaints to management and the applicant's termination that would create a more obvious potential causal link, the lapse in time is not so long as to make it plain and obvious that it cannot succeed. The question of causation involves the determination of the employer's motivation, and has been interpreted to mean that even mixed motivation is a breach of the OHSA. In the majority's view the pleadings are sufficient to establish an arguable case that one of the reasons that the applicant lost her job through reorganization was, as pleaded, that she was attempting to obtain protection from the employer from a situation she considered hazardous to her health and was acting in compliance with the OHSA by reporting what she believed was a hazard. Thus, the motion failed on this ground as well.
We have seriously considered whether, even though there is an arguable case as set out above, in the exercise of our discretion, we should decline to hear this complaint because sexual harassment is much more central to the jurisdiction of the Human Rights Commission than to that of the limited reprisal jurisdiction of the Board under the Occupational Health and Safety Act. Pursuant to section 50(3) of the OHSA, it is a discretionary matter as to whether the Board will inquire into a complaint. It is not obliged to do so. For many years, the Board has exercised its discretion to decline to hear complaints because of delay or where the issue was moot. More recently, the Board has further developed its articulation of the scope of its discretion and the circumstances in which it will decline to entertain applications. See, for instance, Power Workers' Union - CUPE Local 1000, [1994] OLRB Rep. June 627, where a combination of circumstances, including delay, remedial difficulties, prior parallel litigation, and an overlapping human rights complaint, lead the Board to decline to inquire into a complaint. As the Board said, any of those factors alone or in combination might lead the Board to exercise its discretion to decline to entertain an application.
As indicated in our July decision the Board considered staying the matter on its own motion in favor of the then outstanding complaint under the Human Rights Code. That application has now been discontinued, and we are no longer faced with the problems of two parallel proceedings and potential inconsistent findings. The Board is very much concerned with duplication of litigation, and might well have deferred this matter had the other proceeding not been ended. However, neither party argued for deferral even when the other complaint was outstanding; the employer opted not to make that motion. We are of the view that these are not the appropriate circumstances for the Board to do so of its own motion.
The cases in which the Board has exercised its discretion against inquiring into a complaint are ones in which at least one party has asked it to exercise that discretion, and usually are cases in which the Board has a developed body of jurisprudence and some significant experience, such as the fair representation type of complaint addressed in the Power Workers case referred to above. Here, neither party addressed this matter as a question of discretion, and we are in an area of law in which there is no decided case at the Board. The majority is of the view that in the particular constellation of factors before us, it is not appropriate to dismiss the matter on a discretionary basis, despite the practical and legal problems involved in fitting a subject that is clearly a human rights ground into a statute that does not refer to it directly. The factors we have taken into account include the novelty of the issue before the Board, the lack of a motion before it asking us to exercise our discretion in that manner, the fact that the Board clearly has the jurisdiction to determine whether or not this is a valid health and safety complaint, and that the issue of sexual harassment is not the only issue engaged by the facts pleaded. The pleadings are such that the issue could be framed as well to be whether the applicant was subject to any of the alleged reprisals for the reporting of a health hazard in compliance with the OHSA.
Thus we will go on to consider, after a hearing, whether in reporting incidents of alleged sexual harassment the applicant was acting in compliance with or seeking the enforcement of the OHSA, and whether she was fired or otherwise penalized for so doing. We note that if the employer establishes that the termination had nothing to do with any purported exercise of rights under the OHSA, the remedy the applicant seeks, reinstatement, will be unavailable, and it may be unnecessary to decide the other questions.
The above are our reasons for setting the matter down for hearing.
DECISION OF BOARD MEMBER R. W. PIRRIE; June 20, 1996
As the parties are aware I dissented from the majority's initial decision on November 23, 1995 that the Ontario Labour Relations Board hear this matter. In so dissenting I was responding to the hospital's preliminary motion with respect to the applicability of the OHSA to the issue of sexual harassment in the workplace.
I have carefully reviewed the full reasons of the majority as set out above, and I am still of the view that the scheme of Ontario's legislation is such that the OHSA and the OLRA is not the proper legislation under which this case should be heard. The Human Rights Code was designed and enacted to deal in a comprehensive way with issues of harassment in the workplace.
At paragraph 54 the majority state in part that "...the employer was essentially asking for a ruling on a question of law; is sexual harassment a hazard covered by the OHSA? In our view it is neither necessary nor appropriate to answer that question at this stage...". With respect, I disagree. The question was squarely put and thoroughly argued by the parties. I can see no reason not to answer the question.
1 am unable to ascertain what might emerge from the hearing of the case which will go to the issue of jurisdiction which was not addressed in the argument dealing with the preliminary motion. The thought that the Board would conduct a lengthy, emotional and expensive hearing pertaining to this matter and then conclude it did not have jurisdiction is, to say the least, troubling to this writer.