Irene Frank v. Sammons & Channer Men's Clothing, 1997 CanLII 15512

Irene Frank v. Sammons & Channer Men's Clothing

Court File No.: 0521-96-OH Date: 1997-04-22 Ontario Labour Relations Board

Re: Irene Frank, Applicant And: Sammons & Channer Men's Clothing, Responding Party

Before: Janice Johnston, Vice-Chair.

Appearances: H. Kopyto and Irene Frank for the applicant; Laurel Johnson and Robert A. J. Landrv for the responding party.

DECISION OF THE BOARD

1. This is an application pursuant to section 50 of the Occupational Health and Safety Act (the "OHSA").

2. At the outset of the hearing scheduled to deal with this matter, counsel for the responding party, Sammons & Channer (the "company" or the "employer"), raised a number of preliminary matters. Counsel for the company argued that the Board should decline to inquire into this complaint for the following reasons:

1. due to the undue delay of the applicant in bringing it;

2. the fact that the portions of the complaint were resolved pursuant to an earlier human rights complaint filed by the applicant;

3. that there has been no reprisal pursuant to section 50(1);

4. that as this complaint deals essentially with allegations of sexual harassment, it should be dealt with pursuant to the Ontario Human Rights Code (the "Code").

3. Section 50 of the ORSA reads as follows:

50.- (1) 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 (1), 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 96 of the Labour Relations Act 1995, except subsection (5), applies with all necessary modifications as if such section. except subsection (5), is enacted in and forms part of this Act.

(4) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), sections 110, 111, 114, 116 and 117 of the Labour Relations Act 1995 apply with all necessary modifications.

(5) On an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (I) lies upon the employer or the person acting on behalf of the employer.

(6) The Ontario Labour Relations Board shall exercise jurisdiction under this section on a complaint by a Crown employee that the Crown has contravened subsection (1).

(7) Where on an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the Board determines that a worker has been discharged or otherwise disciplined by an employer for cause and the contract of employment or the collective agreement, as the ease may be. does not contain a specific penalty for the infraction, the Board may substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.

(8) Despite subsection (2), a person who is subject to a rule or code of discipline under the Police Services Act shall have his or her complaint in relation to an alleged contravention of subsection (1) dealt with under that Act.

4. The applicant, Ms. Irene Frank, commenced employment with the company on April 28, 1989. The employer is a retailer of upscale men's clothing with two locations at shopping malls in London, Ontario. Ms. Frank was employed as a seamstress at the company s Westmount Shopping Mall location. She was employed to assist in making alterations to clothing purchased at the store as well as clothing purchased at another store. Ms. Frank's immediate supervisor was Mr. Dominic Longo. The last day worked by Ms. Frank was April 9, 1996. The employer took the position that she quit her employment on that day. The applicant's representative characterized her separation from employment as a constructive dismissal.

5. In her complaint the applicant asserts that she experienced working conditions which included: an expectation that she would not take breaks and would work without pay for hours in excess of eight in a day; although she was hired to work Monday, Tuesday, Friday and Saturday her days of work were changed without her agreement; and that she was required to work in an area with high noise levels and where there were vibrations from compressors located above the ceiling. Ms. Frank alleges that she was subjected to gender harassment by her supervisor, Dominic Longo, during the first three years of her employment. This harassment continued until Ms. Frank filed a formal human rights complaint pursuant to the Code on May 25, 1992. She provides numerous examples in the health and safety complaint before me, of the alleged sexual harassment and the effect that Mr. Longo's conduct had on her. The human rights complaint was settled in June, 1992. Ms. Frank was not satisfied with the assistance she received from the Human Rights Commission.

6. Ms. Frank goes on to assert in the complaint before me that after she filed her human rights complaint, Mr. Longo engaged in a pattern of reprisal directed against her. The following conduct is alleged in the complaint as indicative of the reprisals and retaliation, for having made the human rights complaint, engaged in by Mr. Longo and others.

7. Shortly following the making of the aforesaid complaint. Dominic Longo engaged in a pattern of reprisal directed against the Applicant which involved arguing with her when such was entirely unnecessary to do, shouting at her and picking loud arguments with her over a variety of different matters which were inappropriate for a display of anger.

8. Some of the incidents to which the Applicant was subjected following her return to her employment following a period of surgery and recovery included the following:

(a) upon the first day of her return, Dominic Longo indicated to her that he did not want to work with her any more. Peter Channer also told, Dominic Longo, "we will get rid of her on June IS, 1992";

(b) the applicant was not at work when someone removed the iron from her work area in December, 1993. The iron removed was [a] modern iron which she had been using to iron clothes and it was replaced with a much older model which never worked properly, had to be used on a regular basis, was heavy and hard for the Applicant to use and posed a serious safety hazard as it leaked water. On January 31, 1994, the Applicant mentioned to Longo that the iron had been exchanged for a more dangerous and inferior model. He challenged her assertion and confronted her with the suggestion that she would now report him or someone else for this alleged conduct;

(c) Longo repeatedly told salespersons who were working on the premises where the Applicant was working "not to go near her" referring to the Applicant. On June 19, 1992, when the Applicant asked Longo for instructions with respect to some work she was doing he reacted with anger against her and asked "Is this an invitation";

(d) Longo gave her time-consuming and demanding work and thereafter closely monitored her, frequently walking around her from only a few feet away. In or about the month July. 1993, when the Applicant became ill in addition to attempt [sic] to using her holiday period in order to recuperate from the stress induce illness she [sic] experiencing, she required an extra week off work in order to recuperate;

(e) in or about the month of August, 1993, the Respondent attempted to dismiss the Applicant from her employ. When the Applicant appeared for work on one day, Peter Channer approached her and told her that he tried to phone her to tell her not to bother coming to work. During the summer of 1993, the Applicant was told that she had to work on Thursdays as well. She was given difficult and time-consuming work to do during this time. Both of these decisions were made as a reprisal and in order to attempt to effect her discharge;

(f) the Applicant had her days and hours of work reduced. For example, in 1994 she was asked to work only half the time that she had previously worked during the months of March, April and May of 1993;

(g) on December 19, 1995, Longo began calling the Applicant a lair Isic], yelling at her "1 have had enough of you this is the end". He used names against her as well saying that you are possessed" and that "you are causing my ulcer". On November 24, 1994, February 2, 1996, March 5, 1996 and March 18, 1996 he told the Applicant that she was "possessed". During the month of July, 1993, Longo called her a lair [sic], swore at her and yelled at her stating "you caused my allergies" and attempted to displace her from her working space. In addition at that time he threw the iron yelling at her "you are mean and cold, full of poison. You have no love in your heart". This event took place on January 12, 1996;

(h) Mark Channer further advised the Applicant that she was responsible for causing Dominic Longo's ulcer on March 5,1996;

(i) Longo advised the Applicant that he would never forgive her for reporting his conduct and that he didn't want to work with her which comment was made on 1995 [sic]. He also insinuated that the Applicant prayed to the devil and that he could stand her any more and that "we will have to decide";

(j) on January 14. 1995, when the Applicant complained to Lloyd Sammons regarding the fact that Dominic Longo was arguing with her and shouting at her, he indicated to her that if she would not get along with him, she should quit. He stated to her "you cannot work with him at [sic] after all that he said to you recently, can you?";

(k) on January 5, 1995, the Applicant was told by Guido Ticco, a tailor working for the Respondent, to find another job. This was only one of several comments made from time to time encouraging the Applicant to quit her employment. Similar comments were made on January 19, 1995;

(l) Dominic Longo would frequently respond to questions asked of him by the Applicant in connection with work that she had to do by giving her the "silent treatment", by shouting and yelling at her for no apparent reason and by acting resentfully and, for example, on one occasion, saying that she "was bugging him" and "you make my life miserable" which comments were made in December, 1995, in September, 1995 and on January 12, 1996;

(in) Dominic Longo would put the radio on at a very high volume despite protestations by the Applicant that it would bother her and interfere with her concentration and cause her anxiety and stress. When she attempted to turn the radio down, she was accused by Dominic Longo of causing trouble. On February 2, 1996, Longo kept closing the door as a result of which she was no longer allowed to open it [sic] let fresh air in;

(n) the Respondent attempted to force the Applicant to move to the other store operated by the corporate Respondent where her working conditions would be significantly worse as the space in which she could work was much smaller and there were no windows or fresh air available to her. One effort to move her to the other store took place on June 16, 1992 and a similar effort was made during the month January, 1995;

(o) throughout the period of her employment, she was required to work at regular pay during statutory holidays and did not have the benefit of having Christmas holidays or other holidays off except for one occasion when she was given one day off.

7. In response to the employer's motion to dismiss this complaint for undue delay, Ms. Frank testified as to the reasons why she left the employment of the company and delayed in bringing this complaint.

8. Ms. Frank testified that from September, 1995 onwards she realized that the stress she was suffering at work was severely affecting her. She was dizzy, fainted often, had headaches, stomach pains and chest pains. She indicated that she felt oppressed and hopeless. She sought the assistance of her family doctor and a psychologist. At the time she was also seeing a specialist for what she referred to as her "underlying problem". It appears that Ms. Frank had circulatory problems and suffered from hypertension. By April, 1996 Ms. Frank testified that, as she was badly run down and could no longer cope with work, she quit her employment. Since leaving the company, Ms. Frank testified that she has recovered emotionally and that most of her physical ailments are gone. She still suffers some dizziness but it is not as severe.

9. Ms. Frank testified that she did not complain about the conduct of Mr. Longo after she filed her human rights complaint because she felt that she was on the "fringe of society" and not "socially empowered". She testified that she didn't know who would help her or where to go. She indicated that she needed her job so she tried to cope as long as she could. In cross-examination, Ms. Frank acknowledged that while she was working, she occasionally saw one of the company's owners, Mr. Peter Channer. She acknowledged that she never requested a meeting with him. She indicated that she did not do so because she felt that he already knew she was having problems with Mr. Longo.

10. On April 9, 1996 it appears that Ms. Frank delivered a letter to her employer outlining her concerns and indicating that the situation at work was affecting her emotional and physical health. She indicated that unless the conditions were corrected it would be impossible for her to attend work. The letter reads as follows:

Dear Messrs. Channer/Sammons

Re: Irene Frank

Please note that I have now worked at your Store for approximately seven years. During this time I have attempted to perform my duties as best as I can. I believe that I have done a good job.

Throughout the course of my employment, I have worked long hours, frequently eight hours a day without regular lunch, morning or afternoon breaks. I have continued my employment despite the fact that I have not been paid for a statutory holiday such as Christmas holidays and others that I understand I should be paid for in law (except for one day).

As you know, during the first three years of my employment, I was subjected to gender harassment by Dominic Longo, my immediate supervisor. Such harassment finally ended in 1992 after I complained to the Ontario Human Rights Commission. However, since that time I have continued to be subjected to loud and argumentative treatment by Mr. Longo while at work. Also, Mr. Longo's harassment of me which I believe is motivated by my earlier complaint against him also caused me a great deal of stress and anxiety, including taking away from me a modern iron and replacing it with a much older model. This iron which has to be used on a regular basis is heavy and hard for me to use and poses a serious safety hazard as it leaks water.

Mr. Longo frequently picks arguments with me over anything that comes to his mind and when he does so, this usual [sic] results in him shouting at me and causes me severe emotional distress and anxiety. In addition, from time to time, I have complained about certain work conditions that have affected my health and safety (as well as those of other workers) such as vibrations from compressors above the ceiling as well as high noise levels in the work place. My complaints have never been taken seriously and nothing has been done to lessen the noise or vibrations. Indeed, on one occasion, Mr. Longo turned the radio on louder after I complained about the noise levels saying that I complained about everything and "you started it".

The purpose of my letter is to advise you, as Mr. Longo already knows, that this is affecting my emotional health as well as my physical health and is creating high levels of anxiety. As a result, I wish to advise you that unless corrective action is taken with respect to the noise levels, the vibrations from the compressors and the ongoing shouting and arguments with Mr. Longo directed at me in the immediate future, these conditions will make it impossible for me to attend at my employment.

I am writing this letter to advise you of the impact these matters are having on my health and safety

and to ask you investigate the matter and take immediate corrective action.

Yours very truly,

"Irene Frank"

Irene Frank

Ms. Frank has not returned to work since that time. It is not clear if or how the company responded to this letter. Ms. Frank filed the complaint currently before the Board on May 15, 1996.

11. At the end of Ms. Frank's examination-in-chief, her representative sought to put before the Board three letters written by a Dr. Janie Martini-Bowers, Phd., the clinical psychologist who had been counselling Ms. Frank. As the applicant's representative was not prepared to call Dr. Martini-Bowers as a witness or to produce the doctor for cross-examination, counsel for the employer objected to the introduction of the letters without the opportunity to cross-examine their author.

12. The applicant's representative indicated that the three letters were not being presented as expert evidence but as the reports of her treating doctor. He argued that it is a well established and acknowledged principle that a doctor's letter outlining treatment is routinely admitted without calling the doctor. If you comply with certain formalities, then the letters are admitted for the truth of them without calling the doctor. Therefore, in his view, if the letters are ordinarily admissible in a judicial proceeding, they should be admissible in the quasi-judicial proceedings before the Board. The applicant's representative suggested that as the Board can and does entertain hearsay evidence and there is nothing in the Board's Rules of Procedure preventing their introduction, the Board should not adopt a formal approach and should allow the letters into evidence. In the alternative, the applicant's representative suggested that if the Board was not prepared to admit the letters for the truth of them, then the Board should accept them for the purpose of explaining the actions taken by Ms. Frank. In his opinion, it would be unrealistic for the Board to expect Ms. Frank to have sufficient money to be able to afford to subpoena the doctor to travel to Toronto to attend the hearing.

13. In response, counsel for the employer pointed out that Dr. Martini-Bowers is not a medical doctor, but holds a Phd. Therefore, as her reports do not meet the civil standard and the test laid out by the courts, the Board should not admit them on that basis. Counsel also pointed out that although the Board might be guided by informality, this does not mean that the Board throws due process and natural justice out the window. It is a part of due process to allow for the cross-examination of witnesses and counsel argued that the Board should not allow the letters into evidence without providing her with an opportunity to test the doctor's views in cross-examination. While acknowledging that the cost of bringing the doctor to Toronto is an unfortunate expense, counsel suggested that it is a necessary one in this case.

14. At the hearing I gave the following oral ruling:

The applicant seeks to introduce 3 letters written by a Dr. Martini-Bowers. The responding party has objected to their introduction, unless the applicant is prepared to produce the author of the letters for the purposes of cross-examination.

After having carefully considered this matter I am of the view that in the absence of agreement by the responding party, it is not appropriate to allow the letters to be introduced into evidence in the absence of the author.

As the agent for the applicant has indicated that Dr. Martini-Bowers will not be called to give evidence or produced for cross-examination, the letters will not be received by the Board for the truth of their contents. The context in which the admission of the letters is sought is the motion by the responding party that the complaint ought to be dismissed for extreme delay. This delay in some instances spans a seven year period.

The agent for the applicant suggests that if I am not willing to receive the letters for the truth of their contents in the absence of their author, then I should accept them as indicative of the reasons for the course of conduct taken by the applicant. It appears to me that, unless I accept the letters for the truth of them, I cannot accept them as indicative of the reasons for Ms. Frank's delay in bringing this application. Accordingly, in the absence of Dr. Martini-Bowers, I am not prepared to admit the letters into evidence.

15. The ruling outlined above was given as a "bottom line" to enable the hearing to proceed. However, it is now appropriate to issue some brief reasons for that ruling.

16. The Board has authority to control its practice and procedure pursuant to section 110(16) of the Labour Relations Act, 1995 (the "Act"). The Board also has the discretion pursuant to section 111(2)(e) to admit hearsay evidence and could have admitted the evidence offered in this case, subject to the weight that ought to be given to it, without requiring the applicant to produce the author of the letters and reports for the purpose of cross examination. In my view, it was not appropriate to proceed in that fashion.

17. Pursuant to the common law, a witness may only give evidence with regard to the facts within his/her personal knowledge. However, the common law has also long recognized an exception with regard to experts who, once it is established that the individual is qualified to render an opinion on the matter in question, are permitted to give what is referred to as "opinion evidence". Medical practitioners and handwriting specialists are two examples of experts whose evidence has been recognized and admitted in Board proceedings. However, the issue before me was not whether the Board should hear expert testimony, but whether I should admit what amounted to unsworn, controversial hearsay evidence without providing the employer the opportunity to cross-examine its author, in circumstances in which the disputed evidence went to the heart of the preliminary objection concerning the delay of the applicant in commencing these proceedings.

18. This issue has been canvassed by the courts and in the arbitral jurisprudence. In Re Canadian Broadcasting Corporation and N.A.B.E.T. (unreported decision dated October 25, 1991 (Burkett)), the arbitrator reviewed some of the relevant Ontario Court jurisprudence and stated as follows:

19. The corporation relied on a number of Ontario Court decisions in support of its position that the medical certificates ought not to be admitted without the opportunity to cross-examine their author. The corporation relies upon Briand v. Sutton (No. 2) (1986) 1986 CanLII 2494 (ON HCJ), 15 C.P.C. (2d) 36 (Ont. S.C.) where, notwithstanding the statutory exception to the hearsay rule permitting the introduction of medical reports into evidence without the author being required to testify, admitted the certificates on condition the doctor be available for cross-examination. The Court ruled that:

“As a matter of practice, at least in a case where there is a contradiction between medical reports of the respective parties, the discretion is exercised in favour of requiring the medical practitioner to give oral testimony.

In any event, in my view, the right of cross-examination is paramount and I would be loath to exercise my discretion by denying counsel for the defence the right of cross-examination." (emphasis added)

In re Ferraro v. Lee (1974)1974 CanLII 440 (ON CA), 2 OR. (2d) 417 (Ont. CA.). another judgement relied upon by the corporation, the Court identified the primary purpose of 5.52 of the Evidence Act as allowing the Court:

“….to dispense with the unnecessary attendance of medical practitioners at court where the facts were such that their written medical reports would suffice in evidence to enable the fact finding tribunal to adequately understand and apply medical diagnosis and opinion.”

The Court saw the section as allowing the party seeking to rely on the doctor's certificates to make an election as to whether to proceed by way of filing the certificates or by way of calling the doctor. The Court then ruled that:

“….if leave is granted to file a report the opposite party has an absolute right to require that the doctor attend for cross-examination (in which event the doctor remains the witness of the party who filed the report.) (emphasis added)

Reference is also made to Kapulica v. Dumancic (1968) O.R. 438 CA. wherein it was held that:

"It is apparent that in the light of the view I have expressed, the doctor signing the report became a witness of the party on whose behalf the report was tendered: that there was an absolute right of cross-examination on the part of the defendant and that the denial of this right of cross-examination, particularly in view

of the relevance as to causation, was in itself grounds for the granting of a new trial." (emphasis added)

19. In Carew v. Loblaw's Limited (1977) 1977 CanLII 1075 (ON HCJ), 18 O.R (2d) 660 (Ontario H.C.J.), it was noted that:

Once the party files a medical report that party becomes obligated to produce that doctor before the court and for the purpose of cross-examination by the party adverse in interest, if so requested.

20. In determining how best to exercise my discretion, it is appropriate to consider the factors outlined by arbitrator Burkett in Re Canadian Broadcasting Corporation, supra. His approach, while articulated in the context of arbitral proceedings, is equally applicable or relevant to Board proceedings.

Accordingly it is appropriate in determining whether to admit the reports, to balance the desire to ensure that hearings do not become unduly technical, time-consuming and expensive against the requirements of procedural fairness or due process and natural justice, having regard to the factual context of each case. This approach has been followed in Metropolitan Toronto Association for Community Living, (unreported decision dated February 18, 1994 (Saltman), Re Peel Memorial Hospital (1996), 1996 CanLII 20460 (ON LA), 52 L.A.C (4th) 254 (Howe) and Miracle Food Mart of Canada (unreported decision dated August 20, 1996 (Mitchnick)). In Metropolitan Toronto Association for Community Living, arbitrator Saltman stated:

During the course of the hearing, the Union indicated its intention to introduce certain medical reports, at which point the Employer requested that the author of those reports be made available for cross-examination. The Union asked that I exercise my discretion to admit the medical reports without requiring that the doctor be produced for purposes of cross-examination.

In my view, the Employer's position must prevail. Firstly, the courts have recognized (I) that there is an obligation on a party who seeks to file a medical report to produce the doctor who prepared the report for purposes of cross-examination; and (2) as a corollary. that the doctor becomes the witness of the party on whose behalf the report is filed: see Kapulica v. Dumanic, 1968 CanLII 419 (ON CA), [1968] 2 O.R. 438 (Ont. C.A.); Carew v. Loblaw's (sic) Ltd., (1997), l8 OR. (2d) 660, 83 D.L.R. 603 (H.C.J.); Briand et al. v. Sutton (1986), 1986 CanLII 2494 (ON HCJ), 57 OR. (2d) 629 (H.C.J.). To similar effect are the following arbitral awards: Re Brampton Hydro-Electric Commission and International Brotherhood of Electrical Workers, Local Union 636; Grievance of Cook, February 16. 1990 (Devlin (unreported)) and Molson's Brewery, August 1, 1980 (Weatherill (unreported)) referred to in Weatherill, Labour Arbitration Procedure (Canada Law Book), at pp. 66-67. Furthermore, although Subsection 45(10) of the Labour Relations Act allows an Arbitrator to admit and act upon evidence which may be inadmissible in a court of law, there is no indication that this Section was intended to compromise procedural fairness, which includes the right to cross-examination. To the extent that other arbitral awards have come to a different conclusion on the matter. I decline to follow them.

Accordingly, it is my ruling that if the Union chooses to submit medical reports and the Employer requests the opportunity to cross-examination on these reports, the doctor must be produced for this purpose. I will remain seized to deal with any other aspects of this issue which may arise as well as with the merits of the dispute.

21. In the case before me, I was not dealing with a straightforward doctor's report indicating that a physical condition prevented an employee from attending work. For example, in a case where a doctor's note indicates that an employee with a broken leg will be off work for six weeks, it is difficult to see why it is necessary to call the doctor to give this evidence. In that situation, the factual context makes it clear that little procedural unfairness would occur if a written report was admitted in the absence of its author. In that instance, it is appropriate for the desire for expedition, informality and cost savings to be given precedence. However in the case before me, the written evidence sought to be admitted was intended to substantiate a medical theory or diagnosis that formed the basis of the reasons for the delay, namely that the sexual and other harassment allegedly suffered by Ms. Frank caused her to wait seven years before filing the health and safety complaint currently before me. The reasons for this delay form a central part of the issue before me. When dealing with a medical theory involving cause and effect, that is based on the subjective emotional or psychological state of the applicant, the doctor should be made available for cross-examination if reliance on written letters or reports is sought.

22. Clearly I had the option of admitting the reports, subject to the weight they could be given. See in this regard Chrysler Canada Limited, (1974), 1974 CanLII 2285 (ON LA), 5 L.A.C. (2d) 164 (Rayner); Steel Company of Canada, (1975), 1975 CanLII 2153 (ON LA), 8 L.A.C. (2d) 298 (Beatty); St. Jean de Brebeuf Hospital, (1977), 1977 CanLII 2964 (ON LA), 16 L.A.C. (2d) 199 (Swan); Municipality of Metropolitan Toronto, (1992), 1992 CanLII 14555 (ON LA), 25 L.A.C. (4th) 73 (Springate). In the factual context of this case, this would not have been a fair or appropriate manner of proceeding. In this regard, I adopt the reasoning of arbitrator Burkett in Canada Broadcasting Corporation, supra where he stated:

"In the factual circumstances of this case, it seems to me that if admitted without being substantiated by its author, the medical certificate should not be given any weight; to admit it on its face subject to weight would be to mislead the panics, and, more importantly, would, in my opinion be unfair to the corporation. The options are to either to refuse to admit the medical certificate or to admit it on the basis that it be substantiated by its author".

Had I admitted the letters and reports in this case, I would not have been prepared to give them any weight as they represented unsworn hearsay evidence that had not been tested by cross-examination. Before leaving this matter I should note that in the context of this case, I have assumed without finding that a clinical psychologist's letters and reports are expert opinion evidence, similar to that of a medical doctor.

Argument on the Preliminary Motions

23. In dealing with the first preliminary motion, employer counsel started by pointing out that some of the matters complained ot' in this case go back seven years. The reason put forward to explain the delay was the applicant's physical and emotional state, which it is alleged was caused by the harassment by Mr. Longo. Counsel suggested that there is no objective or medical evidence before the Board to support that this was the reason for the delay. The only evidence before the Board is that given by the applicant. Counsel argued that even it' we assume that she was harassed, it would not be reasonable for her to have allowed it to continue for four years after she filed her human rights complaint. Counsel pointed to the fact that as Ms. Frank filed a complaint pursuant to the Code, clearly she knew how to take action to stop the alleged harassment. It is self-serving and contrary to what she has done in the past to assert that Ms. Frank wasn't capable of filing a complaint in a timely fashion in this case. Counsel suggested that even if the Board was to accept that the stress Ms. Frank was suffering caused her to delay in filing this complaint, by her own evidence the stress was not severe until the fall of 1995. There is therefore no evidence before the Board which explains her state of mind from 1992 to 1995. Counsel requested that the Board dismiss the complaint in its entirety due to the excessive delay. In the alternative, if the Board is not prepared to do that, then counsel argued that the Board should strike those paragraphs in the complaint which deal with events which are many years old.

24. In support of her argument that the Board should dismiss this complaint due to the applicant's excessive delay in filing it, counsel for the employer referred the Board to: Tecumseh Products of Canada, Limited, [1985] OLRB Rep. Jan. 123; The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420; Zentil Plumbing and Heating Contracting Ltd., [1996], OLRB Rep. Feb. 178; Gordon Demianchuk v. Amalgamated Transit Union, Local 113; (unreported, Board File No. 0901-93-U, January 18, 1994; Heinz Mauersberger v. The Canadian Union of Public Employees, Local 831, (unreported, Board File No. 098 1-92-U, January 26, 1993); Douglas G. Poole, [1984] OLRB Rep. June 856; Keystone Generator and Starter Rebuilders Limited, (unreported, Board File No. 1245-95-OH, December 15, 1995).

25. In response to the employer's argument regarding delay, the agent for the applicant took the position that the reason for the delay in filing the complaint was the effect that the alleged harassment had on Ms. Frank. In support of his theory he provided the Board with excerpts from two texts, an article, and a decision of the Workers Compensation Appeals Tribunal. He argued that as the employer was the cause of the delay, it should not be able to benefit from it. In his view, there is a reasonable justification for the applicant's delay. In response to counsel for the employer's submissions and the jurisprudence put forward in support of them, the agent for the applicant pointed out that none of the cases relied upon by the employer dealt with the situation where it was the conduct complained of which caused the delay. In addition, he argued that although the Board does not have any medical evidence before it, it does have the evidence of Ms. Frank. He pointed out that she was not cross-examined on this evidence, therefore the employer must have accepted it. He argued that the evidence of Ms. Frank could be viewed as objective, although he conceded that the fact that the evidence of her medical condition came from her could go the weight the Board is prepared to give it.

26. Counsel on behalf of the employer took the position that the health and safety complaint before me should be dismissed as a significant portion of the applicant's allegations deal with alleged sexual harassment that occurred prior to 1992. Those matters were the subject of a human rights complaint which was settled in 1992. Therefore in counsel's view even if the Board has jurisdiction over the effects of sexual harassment, the matters complained of fall under the original human rights complaint which was settled. Counsel points out that the complaint then goes on to detail examples of alleged reprisals due to the fact that the complainant filed the human rights complaint. As there is a "no-reprisal" section in the Code, if Ms. Frank wishes to allege that there has been employer retaliation due to the fact that she filed a human rights complaint, she should be filing a reprisal complaint pursuant to the Code. In counsel's view, section 50 of the OHSA is abundantly clear that it is applicable to situations where an employer takes certain action because a worker has either acted in compliance with the OHSA, or sought the enforcement of the OHSA. The applicant has not acted in compliance with or sought the enforcement of the OHSA, she exercised her rights pursuant to the Code. In this case, there is no evidence of a work refusal or that any notice was given to the employer that Ms. Frank was raising a health and safety issue or that the alleged harassment was a health and safety issue. After going through the complaint paragraph by paragraph, counsel for the employer pointed out that the only matters which could arguably raise health and safety issues were those pertaining to the iron, the radio and the compressor. Counsel suggested that these aspects of the complaint were frivolous and vexatious and that it amounted to an abuse of process to bring them before the Board. Therefore, they should be dismissed. In support of her arguments counsel referred the Board to: The Potato Centre, [1983] OLRB Rep. June 940; Toronto Transit Commission Wheel Trans Department, [1990] OLRB Rep. Jan. 90; H. H. Robertson Inc., [1991] OLRB Rep. April 492; The Great Atlantic & Pacific Company of Canada Limited, [1987], OLRB Rep. May 714; Union Miniere Exploration and Mining Corporation, [1981] OLRB Rep. Nov. 1695; and Imperial Oil Limited, (unreported, Board File No. 2381-95-OH, November 27,1995).

27. In response to the employer's arguments that part of the subject matter of this complaint had been the subject of a previously settled human rights complaint and that any remedy for the alleged reprisals should be pursued under the Code, the agent for the applicant argued that there is nothing in the OHSA that says that the reprisal has to be safety related. He suggested that the wording of section 50 of the OHSA is very broad and that the employer's threat to get rid of her after the human rights complaint was settled is a violation of section 50 of the OHSA. The applicant's representative went through the complaint and pointed out the various incidents in which it is alleged that the employer was penalizing her or retaliating against her. He argued that just because the applicant filed a human rights complaint does not mean she gave up her statutory rights under the OHSA. In his view, simply because the matters were resolved at the Human Rights Commission does not restrict her rights under the OHSA. Some conduct could be a violation of the Code and/or the OHSA and also could enable her to claim relief under workers' compensation legislation or the common law. The applicant's representative took the position that it does not matter to whom Ms. Frank complained, whether it be the Human Rights Commission, the Workers' Compensation Board, or the Labour Board, if the employer engages in a reprisal, a complaint could be filed under another Act (i.e. the OHSA). In the representative's view, gender harassment could fall under the OHSA. Therefore, even though the applicant did have a human rights complaint there is no reason why she cannot also raise valid health and safety concerns. He argued that there are advantages to filing an occupational health and safety complaint and coming before the Board as opposed to filing another human rights complaint. In support of his argument that the applicant was entitled to bring her claim under the OHSA he referred the Board to paragraphs 62 to 65 of the Board's decision in Lyndhurst Hospital, [1996] OLRB Rep. May/June 456. The agent for the applicant argued that there was a connection in this case between the hazard (sexual harassment prior to 1992 and general harassment after that), the complaint and the reprisal such that this is not a frivolous or vexatious complaint.

28. It is the employer's further position that the Board does not have jurisdiction under section 50 of the OHSA to inquire into this complaint. In the alternative, if the Board finds that it is does have jurisdiction to inquire into this complaint, it was the position of the employer that the Board should exercise its discretion under section 50(3) of the OHSA not to hear this application. In the employer's view, the OHSA is not intended to cover sexual harassment in the workplace. The purpose of the OHSA is to promote the health and safety of workers. It does so by prescribing safety standards, typically by regulation, and by establishing mechanisms to identify and rectify situations that may be a source of danger. The OHSA focuses on physical threats to a workers' well-being such as machines, devices and equipment. If the OHSA was intended to cover any condition in the workplace, the word "physical" as found in section 43 of the OHSA, would have been unnecessary. The employer argued that sexual harassment and gender discrimination in the workplace are not safety questions to which the OHSA is addressed but rather are dealt with comprehensively under the Code. The Code provides that every person has a right to equal treatment with respect to employment without discrimination because of, inter alia, sex. The Code further provides that every employee has a right to freedom from harassment in the workplace because of sex. The Code thus explicitly deals with harassment and discrimination in the workplace and provides appropriate adjudicative responses to those situations. The Ontario Human Rights Commission has been specifically empowered to deal with problems of gender discrimination and sexual harassment in the workplace, including any alleged reprisals for asserting any statutory right. The fact that harassment is specifically addressed in the Code, together with prescribed remedial responses, including compensation for mental anguish, (something not contemplated by the OHSA) suggests that the Code and not the OHSA was intended to deal with sexual harassment in the workplace.

29. In the alternative, counsel for the employer argued that even if the problem of gender discrimination in the workplace might conceivably fit under the OHSA, the Board should decline to hear this case because gender discrimination issues are more appropriately addressed by the Commission under the Code. In exercising its discretion to hear this case, the Board should consider whether the statutory basis for doing so is clear or questionable, both from a substantive and remedial perspective. If the Board's jurisdiction is questionable, or the jurisdiction of another tribunal is clear, the Board ought to defer to the other tribunal and exercise its discretion not to inquire into the complaint. The possibility of overlapping litigation involving different statutory regimes and tribunals supports the argument that the OHSA and the code should be read together to create a single, coherent statutory scheme. Therefore, as it appears that a different tribunal was intended by the Legislature to deal with the specific problem raised in this case, the Board should exercise its discretion not to hear this case even if it finds that has jurisdiction to do so on the basis that public policy dictates that the Board should defer to the specifically mandated tribunal. Accordingly, in the employer's view, the Board ought to take into account the existence of an alternative statutory forum with specific and unequivocal statutory responsibility to deal with gender discrimination and workplace harassment and exercise its discretion under section 50(3) of the OHSA not to hear this matter.

30. The agent for the applicant indicated that he is relying upon the first and second decision of the Board in the Lyndhurst Hospital case, (reported [1995] OLRB Rep. Nov. 1371 and [1996] OLRB Rep. May/June 456) with regard to whether or not the applicant can seek a remedy under the OHSA for the hazard posed by sexual harassment in the workplace. He also submitted that the Board's decision in Meridian Magnesium Products Limited, Board File No. 3154-95-OH decision dated December 17, 1996 (unreported), [now reported at [1996] OLRB Rep. Nov./Dec. 964] was in error for the reasons set out in his application for judicial review, a copy of which he provided to the Board. (A copy of the application for judicial review is attached to this decision for ease of reference.)

31. In response to the submissions of the applicant's representative on all of the preliminary motions, counsel for the employer pointed out that the Board did not hear the evidence of any medical practitioners or other experts to substantiate the applicant's theory regarding the effects of sexual harassment on her ability to file a timely complaint. In putting the various articles and excerpts from texts before the Board in final argument, counsel suggested that the agent for the applicant was trying to get evidence before the Board in final submissions. In addition, as these articles and excerpts deal with the effects of sexual harassment, they do not supply any explanation for the delay in the filing of the complaint from 1992 onwards. Even if the Board were to accept this theory of the applicant, counsel points out that based on the applicant's evidence, the sexual harassment ended after the human rights complaint was filed. In counsel's view, if the representative of the applicant wants the Board to accept that there were medical reasons for Ms. Frank's delay, a doctor should have been called to give that evidence. Counsel asserted that the onus is on the applicant to provide a reasonable and rational explanation for her delay and she has not done so.

32. Even if the Board accepts all of the complaint's allegations, counsel for the employer points out that there is still nothing that brings the complaint within section 50 of the OHSA. There was no reprisal because the complainant was not exercising rights pursuant to the OHSA. There is no question that the applicant has rights under the OHSA but she has not sought to exercise those rights. Counsel disagreed with the assertion of the applicant's agent that it doesn't matter where the original complaint was made. In her view, due to the language of section 50, the reprisal must flow from a health and safety complaint. As the applicant has never brought a health and safety complaint, she cannot assert that the employer has acted improperly pursuant to section 50 of the OHSA. Given the circumstances of this case, counsel for the employer requested that the Board exercise its discretion and refuse to entertain this complaint.

Decision

33. The relevant sections of the OHSA (in addition to section 50 which is set out in paragraph 3 of this decision) read as follows:

27.( 1) A supervisor shall ensure that a worker,

(a) works in the manner and with the protective devices, measures and procedures required by this Act and the regulations; and

(b) uses or wears the equipment, protective devices or clothing that the worker's employer requires to be used or worn.

(2) Without limiting the duty imposed by subsection (I), a supervisor shall,

(a) advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware;

(c) take every precaution reasonable in the circumstances for the protection of a worker.

28.(1) A worker shall,

(a) work in compliance with the provisions of this Act and the regulations;

(c) report to his or her employer or supervisor the absence of or defect in any equipment or protective device of which the worker is aware and which may endanger himself, herself or another worker; and

(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.

(2) No worker shall.

(a) remove or make ineffective any protective device required by the regulations or by his or her employer, without providing an adequate temporary protective device and when the need for removing or making ineffective the protective device has ceased, the protective device shall be replaced immediately;

(b) use or operate any equipment, machine, device or thing or work in a manner that may endanger himself, herself or any other worker; or

(c) engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct.

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 be 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.

34. The relevant sections of the Code are:

35. (1) 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.

36. (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.

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10. Section 96(4) of the Labour Relations Act, 1995 provides:

11. (4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.

36. The conduct complained of in this case goes back to the date Ms. Frank commenced employment with the company. It falls roughly into two time periods. From 1988 to 1992 the complaint provides numerous examples of conduct which it is suggested constitutes sexual harassment. In May, 1992 Ms. Frank filed a human rights complaint. From 1992 onwards, it is alleged that the company engaged in reprisals against her for having filed a human rights complaint. In essence, the conduct alleged to have been engaged in by the employer constituting a reprisal consists of: verbal abuse and harassment; removing her iron and replacing it with an unsafe one; reducing her hours of work; playing the radio loudly; attempting to force her to work at another location where her workspace would be smaller and there would be no access to windows or fresh air; and forcing her to work on statutory holidays at regular pay. In deciding the preliminary motions made by the employer, I will assume that all of the facts pleaded in support of all of the alleged conduct and reprisals engaged in by the employer are true and provable.

The "reprisal" issue

37. The applicant's representative argued that the language of section 50 of the OHSA was very broad. He suggested that it could be relied on by a worker in cases where an employer engages in a reprisal because the worker filed a complaint pursuant to another statute. In his view, there is nothing in the OHSA that requires the reprisal to be safety related. I cannot accept that this is an accurate and appropriate interpretation of section 50 of the OHSA. Section 50(1) of the OHSA clearly states that an employer is not to:

(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 has sought the enforcement of this Act. The words "this Act" refers to the OHSA. It does not say "this Act or any other Act" but simply refers to “this Act". To interpret the words used in section 50 in the manner suggested by the representative of the applicant, would be to read into them an interpretation which makes no sense.

38. In a recent decision, Ontario Hydro, Board Files No: 0164-95-R, 0186-95-R, 0187-95-R and 025 l-95-R dated February 27, 1997 (as yet unreported), [now reported at [1997] OLRB Rep. Jan./ Feb. 821 the Board's approach to questions of statutory interpretation is set out as follows:

39. The "modern" rule of statutory interpretation can be simply stated as follows:

One must determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of the proposed interpretation(s), the presumptions and special rules of interpretation, and the admissible extrinsic aids including the relevant legislative history.

(This is my paraphrasing and not a quote, but see Sullivan. Ruth; Driedger on the Construction of Statutes, 3rd Edition, Toronto. Butterworths, 1995).

18. Trite though it may be, it bears observing that the interpretation of a legislative provision must be plausible, and consistent with the apparent legislative purpose.

19. The modern presumptions of statutory interpretation, which as their label suggests are no more than rebuttable assumptions which do not necessarily apply in every case, can be summarized as follows:

(1) The presumption of knowledge and competence. That is, the Legislature is presumed to know the existing statutory law and jurisprudence, and how courts and tribunals function.

(2) The presumption against tautology. That is, it is assumed that the Legislature avoids superfluous or meaningless words, and does not pointlessly repeat itself. Every word is presumed to be intended and advance the Legislature's purpose. This does not mean that the Legislature cannot repeat itself, it only means that repetition is not to be assumed (see Hill vs. William (Parklane) Ltd. [1949] A.C. 530 at 546 (House of Lords)). Pursuant to this presumption, interpretations which render portions of a statute meaningless, pointless or redundant are to be avoided. However, this presumption is easily rebutted by suggesting cogent reasons for the redundant or superfluous words; because for example, of an "abundance of caution" approach. Indeed, as McLaughlin, J. pointed out (albeit in dissent) in Chrysler Canada Ltd. v. Canada (Competition Tribunal) 1992 CanLII 68 (SCC), [1992] 2 SCR. 394 (Supreme Court of Canada). the fact is that Legislatures often use superfluous words.

(3) The presumption of consistent expression. That is, that within the same statute, the same words have the same meaning and different words have different meanings. Statutes are not novels, and legislators are assumed to adopt a fixed pattern of expression.

(4) The presumption of implied exclusion. That is. to express one thing is to exclude another, and a failure to mention something indicates an attempt to exclude it. This presumption is rebuttable by alternative explanations., competing considerations, and drafting errors.

(5) The presumption of coherence. That is, internal conflict is to be avoided by presuming that the parts of a statute fit together to form a rational and internally consistent framework which accomplishes the intended goal.

Applying this approach to the statutory language at issue before me, I am of the view that the words "this Act" as utilized in section 50(1) must be interpreted as referring to the OHSA.

39. It is important to note that the Code, in section 8, also contains a "no reprisal clause". Section 8 of the Code provides that an individual has the "right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act ... without reprisal or threat of reprisal for so doing". Accordingly, Ms. Frank could and should have returned to the Human Rights Commission if she felt that her employer was retaliating against her and engaging in reprisals because she instituted proceedings under the Code.

40. 1 agree with the representative of the applicant that in some circumstances a particular set of facts could support a complaint or case under different legislative schemes. However, once an individual has chosen to file a complaint pursuant to one particular legislative scheme it is not appropriate, nor does it make any sense, to allow the complaint to switch to another legislative scheme or tribunal with regard to a reprisal complaint which is inextricably linked to the original complaint. In other words, once an individual elects to proceed pursuant to one jurisdiction, it is not appropriate to attempt to switch to a different jurisdiction for what is in essence the "second phase" of a particular proceeding.

41. The pleadings and the submissions made by the representative of the applicant suggest that the employer engaged in reprisals against the applicant because she filed a human rights complaint. There is no indication, prior to April, 1996, that Ms. Frank brought any health and safety concerns to her employer, engaged in any work refusal because she felt that her work was unsafe or in any way sought to enforce her rights under the OHSA. Even if I accept that the employer did engage in reprisals, there is nothing before me to support the conclusion that it was because Ms. Frank sought to comply with the OHSA or enforce the OHSA. There is absolutely no basis for a finding that Ms. Frank was acting in compliance with or sought the enforcement of the OHSA prior to April 9, 1996 and that her conduct resulted in a prohibited reprisal by her employer contrary to section 50(1) of the OHSA. Accordingly, I hereby exercise my discretion pursuant to section 50(3) of the OHSA to not enquire further into these events which are alleged to have occurred prior to April, 1996, except as provided later in this decision.

The "delay" issue

42. As already noted, the matters complained of in this case go back many years. The Board's jurisprudence on the issue of delay is extensive. It is helpful to set out the Board's approach as articulated in The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420:

43. It is by now almost a truism that time is of the essence in labour relation matters. It is universally recognized that the speedy resolution of outstanding disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once crystallized, could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later. A collective bargaining relationship is an ongoing one, and all of the parties to it - including the employees - are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have, to all outward appearances, been satisfactorily settled, will not reemerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C.G.E. 3 L.A.C. 980 (Laskin); and Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited [1966] 18 L.A.C. 51 (Arthurs)).

44. In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted any rigid practice with respect to the matter of delay - holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties' current collective bargaining relationship - quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.

45. A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.

46. The Board has recently had occasion to review its approach to the issue of delay in Sheller-Globe of Canada Limited, [1982] OLRB Rep. Jan. 113 - a case which bears some resemblance to the present one, (although there the delay was 2 1/2 years and here it is five). In Sheller-Globe, the complainant was discharged in March 1979, and filed her complaint with the Board in October 1981 In between, she had discussions with union and employer officials, she took legal advice (in March of 1979), she filed a complaint with the Human Rights Commission, and in December 1980, she filed a wrongful dismissal action. Finally, two and a half years after the alleged offence, she complained to this Board that her union had not represented her adequately and requested that this Board direct that the propriety of her discharge be considered by a board of arbitration constituted in accordance with the collective agreement in effect at the time her employment was terminated. The Board dismissed the complaint with the following observations:

“13. A delay of the present magnitude carries with it an element of prejudice which is undeniable. Memories fade, and a party's ability to present a defence will deteriorate for that reason alone. This is particularly true when a party is not on notice that an action against it, requiring the litigation of certain events, remains pending. Here the respondent was justifiably under the impression that the grievance route, or any further demands against the union, had been abandoned in favour of other actions against the company. The lingering discussions which the complainant's husband had with Mr. Pattison and the stewards were clearly of an amicable nature; they provided no indication that action would subsequently be directed against the trade union itself, so that notes or other forms of evidence could be more actively maintained. The defence of the employer is not the defence of the trade union in these proceedings. The Board would be concerned not with the matter of cause for discharge, but rather the steps which the respondent's officials went through in concluding in their own minds that no grounds for a grievance existed. That defence would turn upon the recollection and credibility of the respondent's own officials. It might be noted parenthetically that the Labour Board, in administering the Labour Relations Act, is primarily concerned with the ongoing labour relations of a workplace, and such workplaces do not remain static over time. The Board as a result has always been conscious of the need for expedition in its practices and procedures. The delay in the present case raises concerns over an appropriate remedy, if the Board were to permit this complaint to now proceed, which are not fully answered by the complainant's concession as to damages. In circumstances such as the present, the onus shifts to a complainant to satisfy the Board that there are compelling labour relations reasons to cause the Board to exercise its discretion and entertain the complaint under section 89.

15. In the present case, the delay has indeed been "extreme", and the factors put forward by the complainant are insufficient to deliver her from the consequences of that delay. Certainly the Board has no quarrel with the notion of an aggrieved individual investigating other avenues of redress prior to launching a section 68 application with the Board. But a point is reached, after a reasonable period of time, when the individual must decide whether it is going to go against the trade union or not, and if so, then overt steps must be taken in that direction. The individual cannot rely indefinitely on the efforts being taken on his or her behalf in other directions, and then come back against the trade union when those efforts prove fruitless. The important point to note here is that the other forms of action being pursued by the complainant were directed solely against the employer. Not a word was said to the trade union during that period to indicate that its conduct was being viewed as unlawful, or that its own position might still be placed in jeopardy. The complainant will not now be permitted, at this date, to use section 68 against the trade union as a last resort to reach the employer".

16. The justification provided for the delay in this case is the evidence of Ms. Frank concerning the effect of the harassment she was suffering, that she did not know where to go or whom to turn to and that she did not feel "socially empowered". She primarily attributes her inaction to the stress she was suffering due to the actions of her employer. There is no dispute that Ms. Frank filed a human rights complaint in 1992. She was therefore capable of exploring her rights under the Code and of asserting them. It was clear that she was not satisfied with the efforts of the Human Rights Commission on her behalf and that she chose not to pursue matters there. It was not disputed that some of the allegations in the matter before me were also raised in her human rights complaint. Therefore before 1992, Ms. Frank chose to pursue her rights in another forum. There is no basis for concluding that she was not also capable of filing a health and safety complaint at that time. Therefore due to the extreme delay in filing this complaint, and in the absence of any exceptional circumstances excusing it, it is not appropriate to enquire further into the incidents prior to 1992 and I decline to do so.

17. I have some sympathy for Ms. Frank and I accept that she was suffering a great deal of stress at work. Nevertheless, I cannot accept the explanation or the reasons she provided for her delay in complaining of events which occurred from 1992-1996. In my view, she has not provided a reasonable explanation for her failure to act in a timely fashion after 1992. While I accept that stress can be debilitating, in the absence of some objective medical evidence concerning the effects of stress on Ms. Frank specifically, I cannot accept her subjective view that the stress she was suffering totally prevented her from taking any steps to put an end to it until four years had elapsed. It is simply too self-serving to assert at this point that the stress and anxiety she was suffering inhibited her ability to file a complaint. There is no explanation for this delay from 1992 onwards, other than the subjective testimony regarding her medical condition provided by Ms. Frank. The applicant's representative conceded that it was appropriate for me to consider that such a delay could prejudice the ability of the company to mount a defence due to fading recollections, unavailability of witnesses and deterioration of evidence. Accordingly, after taking the potential prejudice to the employer into account and in all of the circumstances, the delay in this case is too extreme. I therefore exercise my discretion pursuant to section 50(3) of the OHSA (which incorporates section 96 of the Act) and decline to enquire further into any allegations of events that occurred prior to 1996.

The "jurisdictional" issue

45. The final preliminary motion made by counsel for the employer was a motion to dismiss this complaint on the basis that the matters complained of are primarily allegations of sexual harassment which should be pursued under the Code, rather than a remedy sought under the OHSA.

46. It appears, based on the evidence of Ms. Frank and the submissions of the parties, that the sexual harassment ended in 1992. The personal harassment continued but it took a different form. Once again it is therefore appropriate to break this complaint down into two time periods, pre-1992 and post-1992.

47. The matters raised by the applicant pertaining to the pre-1992 time period consist primarily of allegations of sexual harassment and allegations which could possibly involve breaches of the Employment Standards Act. The Board has recently considered the appropriateness of dealing with and remedying complaints of sexual harassment pursuant to the OHSA in Meridian Magnesium Products Limited, supra. The decision provides an excellent overview of the OHSA and the Code, including an analysis of: the legislative purpose behind each; the protections provided by each; the administration of each; and the remedies available under each. I agree with the Chair's conclusion in the Meridian Magnesium Products case that, although the language of the OHSA is wide enough to include complaints of sexual harassment, it is appropriate for the Board to defer to the procedures of the Code and the Commission for the variety of practical, legal, and policy reasons set out in the decision, which I need not repeat here. Accordingly for the above reasons, I would allow the motion of the employer to dismiss the complaint on this basis as well and exercise my discretion pursuant to section 50(3) of the OHSA to decline to enquire further into the allegations of sexual harassment raised by Ms. Frank.

48. The post 1992 allegations raised by Ms. Frank are set out in paragraph seven of this decision. They cover a variety of matters, some of which would arguably be matters traditionally raised as health and safety concerns under the OHSA. For example, her complaints about the compressor noise and loud radio are physical plant issues (see, section 43(3)(b) of the OHSA) and the complaint about the Iron clearly falls under the heading of equipment (see section 43(3)(a) of the OHSA). However, what of the allegations of verbal abuse, yelling and general nastiness engaged in by her supervisor, Mr. Longo? Are these matters which should or could fall under section 43(3) of the OHSA?

49. In dealing with whether sexual harassment could arguably be covered by the ORSA, the Chair of the Board wrote in Meridian Magnesium Products Limited, supra as follows:

50. As I have already noted, the OHSA is framed in very general terms in an effort to address workplace hazards of all kinds; because it would not have been feasible for the Legislature to try to foresee, and spell out in advance, all possible sources of danger in every conceivable work setting. The OHSA applies to workplaces as diverse as auto plants and golf courses; so what the OHSA does, is define specific risks (or levels of risk) in particular situations, then cast a general obligation on workplace parties to examine their own environment with a view to eliminating risks not specifically identified in the statute or regulations.

51. Against that background, it might be said that harassment may pose a risk to the employees' health or well-being, and that harassment and gender discrimination could therefore be encompassed by both the purpose and the general language of the OHSA. Harassment could be considered to be a kind of "assault" on the psyche, which can arguably fit into the elastic language of the OHSA.

52. There is, of course, no regulation under the OHSA dealing with sexual harassment in the workplace - even though its treatment in the Human Rights Code confirms that the Legislature knew that this problem could arise in any work setting where people work together. On the other hand, although sexual (or other) harassment is missing from the OHSA (at least explicitly), there is some legislative guidance about how such problems should arguably be characterized.

53. The Workers' Compensation Appeal Tribunal has held under the Workers' Compensation Act that sexual harassment in the workplace can lead to a compensable psychological trauma and disability. It is workplace behaviour that has an injurious impact just like an accident or industrial disease; and the fact that it may be "intentional" or "illegal" behaviour is beside the point. It is an aspect of the work environment that can produce harm and compensable injury.

54. The Human Rights Code also recognizes that harassment and gender discrimination may produce "mental anguish", which warrants compensation. Again, there is statutory recognition that harassment in the workplace has an adverse impact on the victim.

55. These legislative references merely support the common sense inference that harassment or gender discrimination can have an adverse psychological impact on employees that, in a particular case, may not only make it difficult for an aggrieved employee to continue at work, but may also be damaging to an employee's mental health or well-being. Indeed, it is quite foreseeable that serious harassment could lead to stress, which, in turn, could have adverse physical and psychological manifestations. And if harassment results in a compensable disability, or its impact requires medical treatment, there is nothing incongruous about treating it as a "hazard", or "risk", or a threat to an employee's "safety" at work.

56. Once one accepts the notion of a mental illness, or psychological disability, it is no great leap to look for the cause in overt discrimination or harassment at work - or to treat such illegal behaviour as a "danger" to an employee's health. From this perspective, an employee's "health" might arguably include "mental health" - which the OHSA does not specifically mention, but does not rule out either. And once that proposition is accepted, the prevention of workplace harassment may well fall within the ambit of the very general duties imposed upon employers, employees and supervisors under section 25(2)(h) and 28(2)(b) and 27(2)(c) of the OHSA (see: the decision in Pauline Au v. Lyndhurst Hospital, [1995] OLRB Rep. Nov. 1371).

57. I have been somewhat tentative in the preceding paragraphs, because although all of these propositions are certainly "arguable", sexual harassment does not fit very well into the OHSA scheme - quite apart from the potential overlap with the investigatory and enforcement processes set out in the Code. Nor is there much reason to believe that issues of race, creed, colour (etc.) - which admittedly can cause tension or distress in the workplace - were ever intended to be dealt with under the OHSA (in addition to, or instead of the Ontario Human Rights Code). In fact, the specificity of the Code, the specific addition of harassment in 1981, and the specific remedial prescriptions for harassment cases, all suggest the opposite conclusion.

58. Sexual (or racial) harassment in the workplace may fit a literal or even a purposive reading of the term "hazard" in the OHSA, but the OHSA does not deal very clearly with problems of this kind, and the existence of the very specific provisions in the Code, suggests that the OHSA was not intended to do so. For as I have already noted, the Code is also an employment statute that regulates behaviour in the workplace, and prohibits both harassment and reprisals. Moreover, the powers of the Commission and a board of inquiry permit a focused or nuanced response to these specifically identified workplace problems. This Board has no monopoly in the area of employment regulation, or even in the area of employment reprisals.

59. I shall have more to say about that below. At this point, I merely note that within the OHSA itself, the emphasis seems to be on physical threats to a worker's well-being, which may suggest that open-ended words like "health", "safety" or "hazard" should be construed in that light. For as the Court observed in Colquhoun v. Brooks (1889), 14 AC. 493:

It is beyond dispute ... that we are entitled and indeed bound when constructing the terms of any provision found in a statute to consider any other parts of the Act which throw light upon the intention of the Legislature and which may serve to show that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act.

From this perspective, it might be said that general words like "hazard", 'health", "danger", "precaution' should be interpreted in light of the way health and safety problems are considered elsewhere in the statute, and are limited to physical risks or hazards.

128. The provisions of the OHSA focus primarily - if not exclusively - on physical hazards in the workplace: on machines, devices, things, equipment, protective devices, building structures, dangerous biological or physical agents, and soon. (See, for example, sections 8, 9, and 25, and the powers of an inspector under sections 54-60). Even the right to refuse unsafe work under section 43 focuses on the "equipment, machine, device or thing the worker is to use" or the "physical condition of the workplace". The physical element is either implicit in the hazard specifically identified, or has been added by the Legislature, as in section 43 which gives an employee the right to refuse to work when the situation is unsafe. If section 43 had been intended to cover any condition in the workplace, the word "physical" would not have been necessary.

129. Not only does the OHSA appear to be concerned with physical threats of one kind or another, but the provisions of the OHSA do not seem to focus at all on "dangerous people", except in relation to physical activities or the dangerous operation of equipment. Thus, section 28(2) of the OHSA provides:

130. (2) No worker shall.

(b) use or operate any equipment, machine, device or thing or work in a manner that may endanger himself, herself or any other worker; or

(c) engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct.

Even Barmaid's Arms, [1995] OLRB Rep. March 229, a case upon which the complainant relies, involved a physical threat to the employee in question.

130. This is not to say that the OHSA ignores employee behaviour that could pose a danger to other workers. If an employee engages in violent behaviour at work, "rough conduct" or some ill-intentioned 'prank", such behaviour may be caught by OHSA section 28(2), even though it may be a manifestation of misogyny, racism, or other problems addressed in the Code. One must be careful not to unduly limit the scope of OHSA protections, or assume too readily that behaviour can be precisely characterized or confined to precise legal compartments. It is simply that "hazardous words", "dangerous pictures" and "injurious attitudes" - the allegations in this case - do not fit very well into the range of risks to which the ORSA is specifically addressed. Nor are these the sorts of things that appear to be contemplated by the kinds of remedial orders that an inspector may make under section 57. The provisions of the OHSA do not clearly speak to or easily encompass "dangers" to an employee's mental health - be they overt and unlawful harassment (sexual, racial or otherwise) as alleged in this case, or simply conditions in the workplace which generate stress (technological change, impending layoffs, a new boss, friction with other employees, workload, etc.). Nor is it easy to accept that anything that causes "stress" is necessarily a "hazard" regulated by the OHSA.

131. Again, I do not suggest that the OHSA cannot be read to cover circumstances that impact upon the equanimity or mental health of employees - including the behaviour of other employees. It does not take much imagination to think of circumstances (or employee behaviour) that could cause annoyance, anger, anxiety, stress, or even, in extreme cases, mental illness - depending upon the situation, the response of the individual employee, and perhaps the other sources of distress to which an employee may be subject outside the workplace. For, the causes of "stress" are numerous, the responses to stress may be quite variable, [as WCAT has explored in cases such as: Decision No. 352/92 (August 22, 1995); Decision No. 9 16/94 (October 27, 1995); Decision No. 142/93 (November 21, 1995); Decision No. 528/95 (February 20, 1996) and Decision No.511/95 (February 26, 1996)].

132. It is "arguable" that the general terms in the OHSA can be read to encompass this kind of "risk" to employee mental well-being. The point is, issues of this kind are not captured very well - or at least very explicitly - by the general provisions of the OHSA.

Given that sexual harassment could arguably be covered under the OHSA, what about harassment or verbal abuse that is more general in nature and which would not be covered by the enumerated grounds in the Code? Is it arguably covered by the OHSA?

50. At this juncture in the proceedings, it is not necessary nor is it appropriate to answer this question. Apart from the letter purportedly written by Ms. Frank in April, 1996 to her employer, Ms. Frank has not sought out the protection of the OHSA. In other words, there is nothing to indicate that prior to April, 1996 that Ms. Frank ever sought to enforce her rights under the ORSA. If she has not acted in compliance with the OHSA or sought the enforcement of the OHSA, the company cannot be accused of engaging in a reprisal contrary to section 50 of the Act. Regardless of whether or not the conduct of Mr. Longo, of which she now complains, may constitute a breach of some section of the OHSA, the company does not appear to have violated section 50 of the Act, as there is nothing before me to indicate how the company responded to her letter in April, 1996.

51. Therefore, in all the circumstances of this case and for all of the reasons set out under the headings of reprisal, delay and jurisdiction I find that this, subject to the comments that follow, is an appropriate case to exercise my discretion under section 50(3) of the OHSA to not enquire further into the portions of this complaint dealing with events that occurred prior to April, 1996.

52. This brings me to the letter written by Ms. Frank in April, 1996. It appears that Ms. Frank may have been seeking to enforce her rights under the OHSA at this point. In the letter, she raises a variety of issues including some which I have already dismissed as either untimely or as not properly before me. The only health and safety issues I have not dismissed and which still form part of this complaint are those which are of a continuing nature (i.e. the iron, vibrations from the compressors and high noise levels in the workplace) and, assuming without deciding the jurisdictional issue, timely allegations of harassment by Mr. Longo. While I have accepted the facts as asserted by the applicant for purposes of dealing with the preliminary issues, there is no evidence yet that the company actually received the April, 1996 letter, ever responded to or dealt with it, or ever engaged in any reprisals as against Ms. Frank because of the letter contrary to section 50 of the OHSA. It appears that the employer has treated Ms. Frank as having terminated her employment in April, 1996. It is not clear on the material before me whether Ms. Frank intended to quit in April, 1996 (although as noted earlier in this decision she herself referred to having "quit" her employment while giving her evidence) or whether she intended to engage in a work refusal pursuant to the OHSA. In order to deal with these matters, I would need to determine what actually took place in April, 1996.

53. Accordingly, it is necessary to re-list this case to deal with the limited aspect of the case that remains. However, prior to doing so, it is appropriate to provide the parties with an opportunity to file any additional submissions and documents with the Board that they may wish to rely upon. Therefore the representative of the applicant is to file any additional submissions and documents with the Board, with a copy to counsel for the employer, before May 9, 1997. The employer shall then have until May 23, 1997 to provide the Board and the representative of the applicant with any submissions or documents upon which it seeks to rely. This matter will then be re-listed for hearing. Should either party wish to pursue settlement discussions, a labour relations officer can be made available to assist the parties at their request. Such a request should be directed to the Manager of Field Services.

54. I will remain seized of this matter in the event that it is necessary to deal further with this complaint or clarify any portions of this decision.