|
OHSA - General. Metrolinx v. Amalgamated Transit Union, Local 1587
In Metrolinx v. Amalgamated Transit Union, Local 1587 (Div Court, 2024) the Divisional Court allowed a Crown employer's JR against the decision of the Grievance Settlement Board under the Crown Employees Collective Bargaining Act, here regarding human rights issues.
Here the court addresses workplace/sexual harassment, which is addressed under the Occupational Health and Safety Act:[46] In the present case, the Arbitrator’s reasons, read as a whole, fail to recognize that while some victims of workplace harassment are reluctant to report harassment or participate in the resulting investigation, their employer remains obligated to investigate such behaviour and to protect the workplace from a hostile or demeaning work environment.
[47] The Arbitrator’s conclusion that “When Ms. A declined to file a complaint of sexual harassment ... and no other active employee would, that also should have been the end of the matter”, is wrong in law, and indicative of his approach to the issue before him. It is not an isolated misstep, but permeates his reasoning throughout.
[48] Section 10(1) of the Human Rights Code defines “harassment” as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.
[49] The Code provides the following protection from harassment to employees:Harassment in employment
5(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 of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Harassment because of sex in workplaces
7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee. [50] Similar protections are found in the Occupational Health and Safety Act which defines “workplace harassment” as including “workplace sexual harassment” and defines “workplace sexual harassment” as follows:“workplace sexual harassment” means,
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome [51] The alleged sexual harassment in this case would fall into category (a) of the definition of “workplace sexual harassment”. It was a “course of vexatious comment” that the Grievors ought reasonably to have known would be unwelcome. When it became known to Ms. A, it created a demeaning and offensive work environment that no employee should be compelled to endure.
[52] Sections 32.0.1 to 32.0.6 of the Occupational Health and Safety Act set out the employer’s obligations to establish, post and implement policies with respect to workplace harassment. Section 32.0.7 imposes specific duties on the employer to protect a worker from workplace harassment. It states:Duties re harassment
32.0.7 (1) To protect a worker from workplace harassment, an employer shall ensure that,
(a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances;
(b) the worker who has allegedly experienced workplace harassment and the alleged harasser, if he or she is a worker of the employer, are informed in writing of the results of the investigation and of any corrective action that has been taken or that will be taken as a result of the investigation;
... [53] Significantly, s. 32.0.7(1)(a) imposes a duty on the employer to investigate both “incidents and complaints of workplace harassment”. The Ontario Labour Relations Board has confirmed that the terms “incidents” and “complaints” means that the Act contemplates an investigation of an incident even if it is not the subject matter of a complaint: E.S. Fox Limited v. A Director under the Occupational Health and Safety Act, 2020 CanLII 75931; [2020] O.L.R.B. Rep.579, at para. 75:Having regard to the use of the terms “incidents” and “complaints”, and relying on the plain and ordinary meanings of those terms, the Act contemplates investigations where there is an incident of workplace harassment. In other words, an incident of workplace harassment is, in and of itself, grounds for an investigation being carried. That incident can be, but does have to be, the subject of a complaint. [54] I agree with and adopt this conclusion, which is consistent with both the plain and ordinary meaning of those terms and s. 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, which provides that “An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”
[55] An employer has an obligation to take steps to deal with harassment of employees once the harassment is known to the employer: United Food and Commercial Workers Union, Local 175 v. Copper River Inn and Conference Centre, 2021 ONSC 5058 (Div.Ct.), at paras. 33, 35. While the Policy states that “the investigative process is initiated by a complaint”, the policy cannot limit the Employer’s legal obligation under the Occupational Health and Safety Act.
[56] Moreover, the Supreme Court of Canada has, for more than 30 years, been warning judges that it is an error to rely on what is presumed to be the expected conduct or reaction of a victim of sexual assault. In particular, a victim’s reluctance to report or complain about a sexual assault cannot be used to draw an adverse inference about her credibility: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 136; R. v. D.D., 2000 SCC 43, at paras. 63, 65; R. v. A.R.J.D., 2018 SCC 6, at para. 2.
[57] The conduct in this case was not a sexual assault, although courts have recognized that. “harassment with a physical component constitutes a form of sexual assault and is among the most serious form of workplace misconduct”: Calgary (City) v. Canadian Union of Public Employees Local 37, 2019 ABCA 388, 439 D.L.R. (4th) 405, at para. 31, and cases cited therein.
[58] In Calgary (City), the Alberta Court of Appeal held, at para. 42, that while the Supreme Court’s statements about reliance on these types of presumptions and stereotypes were made in the context of criminal proceedings, “the caution about these types of errors should apply equally to arbitrators adjudicating sexual assault grievances” In my view, there is no reason to limit this caution to “sexual assault grievances”, the caution about these types of presumptions and stereotypes applies to all sexual harassment grievances.
[59] A victim’s reluctance to report or complain about sexual harassment may be caused by many factors: embarrassment, fear of reprisal, the prospect of further humiliation, or just the hope that, if ignored, the demeaning comments or behaviours will stop. This is true whether or not the conduct rises to the level of assault.
[60] A victim’s reluctance to report or complain cannot, however, relieve an employer of its statutory duty to conduct an investigation if an incident of sexual harassment comes to its attention.
....
[65] The Employer’s duty to investigate “incidents” as well as “complaints”, means that there was no conflict of interest in having the Employer investigate the incident in the absence of a complaint. The Employer did not become the complainant when it conducted the investigation, because no complainant was necessary.
[66] The Arbitrator’s conclusion that an Employer cannot investigate an incident if the victim is unwilling or afraid to complain is inconsistent with the employer’s obligations under the Occupational Health and Safety Act, and inconsistent with the reality of the workplace environment where employees may refuse to bring forward complaints against other employees for fear of reprisal or other consequences.
[67] Moreover, the Employer’s duty to investigate is not just a duty owed to the complainant, but a duty owed to all employees in the workplace. All employees – not just the direct victim of the comments – have a right to work in an environment that is free from demeaning and offensive comments.
[68] I also agree with the Applicant that the Arbitrator was too focused on the Grievors’ right to privacy. The fact is, whatever the Grievors’ intent, at least some of their comments came to the attention of Ms. A in the workplace. Given the nature of social media, and the fact that the number of employees who had access to the chat was not known, this was hardly surprising. The employees who participated in the chat were free to, and did, forward the message to other employees. Wherever it originated, the impugned conduct made its way into the workplace and, to that extent at least, became a workplace issue.
....
[72] This Court has confirmed that “not every case of sexual harassment or assault demands a discharge. There are cases where it is appropriate to substitute a lesser penalty, particularly where the conduct falls on the less serious end of the continuum and the grievor has demonstrated remorse for his behaviour.”: Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011, 2013 ONSC 2725, at para. 21.
[73] See also: Ontario Power Generation v. The Society of United Professionals, 2020 ONSC 7824, at para. 38:If we were to accept OPG’s arguments on this application, all findings of sexual harassment, regardless of the nature of the conduct, would warrant termination. This cannot be the case. Ultimately, it is up to the arbitrator to consider the specific conduct in each case and decide whether termination or a lesser penalty is appropriate in the circumstances. . R. v. Greater Sudbury (City)
In R. v. Greater Sudbury (City) (SCC, 2023) the Supreme Court of Canada, in an unusual case where the court issued a split decision (leaving the Court of Appeal ruling governing), regarding occupational health and safety. These quotes are from the four-judge ruling (Martin JA) that would have dismissed the appeal, here addressing the interpretation of OHSA s.25(1)(c) [SS: 'Duties of employers']::[7] ... Second, I explain why the Ministry need not prove control in a prosecution against an employer under s. 25(1)(c) of the Act. ...
....
B. What the Ministry is Required to Establish
[12] Section 66(1)(a) of the Act makes it an offence for a workplace actor to breach one of the Act’s obligations, including s. 25(1)(c), which is a strict liability offence (R. v. Timminco Ltd. (2001), 2001 CanLII 3494 (ON CA), 54 O.R. (3d) 21 (C.A.), at para. 23). As such, when s. 25(1)(c) is the subject of the charge, the Ministry only needs to prove the actus reus beyond a reasonable doubt to ground a conviction; the Ministry does not need to prove mens rea. To prove the actus reus, the Ministry must prove that workplace participant was an employer under s. 1(1) and that there was a breach because the employer did not ensure that the prescribed measures and procedures were carried out in the workplace.
[13] My colleagues Rowe and O’Bonsawin JJ. and I agree that the definition of “employer” is a free-standing and distinct question from the question of the scope of the duty under s. 25(1)(c) (see para. 75). Though the interpretation of “employer” in s. 1(1) and of the duty in s. 25(1)(c) are related insofar as the provisions provide context for one another and are governed by the same statutory purpose, these two questions must remain analytically distinct. Additionally, my colleagues Rowe and O’Bonsawin JJ. and I agree that control should not be embedded into the definition of “employer” (paras. 93 and 97). Where we part ways is the role of control in relation to the employer’s duty in s. 25(1)(c).
(1) Proving the City Is an “Employer” Under Section 1(1) of the Act Does Not Require the Ministry to Prove Control
[14] The Act defines an employer asa person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services; [15] The meaning of “employer” was thoroughly canvassed and authoritatively determined in Wyssen (see Ontario v. London Excavators & Trucking Ltd. (1998), 1998 CanLII 3479 (ON CA), 40 O.R. (3d) 32 (C.A.), at p. 40; Ontario (Ministry of Labour) v. Pioneer Construction Inc. (2006), 2006 CanLII 15621 (ON CA), 79 O.R. (3d) 641 (C.A.), at para. 19; Dofasco Inc., at para. 9; Ontario (Ministry of Labour) v. United Independent Operators Ltd., 2011 ONCA 33, 104 O.R. (3d) 1, at para. 38).
[16] In that 1992 decision, the Court of Appeal for Ontario eschewed, not embedded, a control requirement for who qualifies as an employer. In doing so, the court endorsed the “belt and braces” approach of placing overlapping responsibilities on all workplace actors, regardless of their level of control, in order to best protect worker safety. Blair J.A., for the majority, considered the text, context and purpose of s. 1(1) in concluding that the definition of “employer” is broad, unconnected to control, and encompasses two types of relationships: (1) where a person employs workers; and (2) where a person contracts for the services of workers (p. 196).
[17] It is clear from the text of the definition of “employer” that control is not an element that the Ministry must prove to establish that an accused is subject to the duties of an employer. First, the definition contains no reference to control. It is simply not there when it could have been, if that was the intention of the legislature. This Court must give effect to what the legislature included in the definition of “employer”. To conjecture and then grant priority to what the legislature chose not to include, by adding an additional element into the definition, “would be tantamount to amending [the Act], which is a legislative and not a judicial function” (R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, at para. 26 (emphasis deleted); see also R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128, at para. 8).
[18] Second, at common law, a person’s relationship with an independent contractor is typically characterized by a lack of control on the part of that person over the contractor (671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, at paras. 33-48). The phrase “contract for services” is used, at common law, to refer to such relationships. Comparatively, “contract of service” is used to denote an employment agreement. By referring to a “contract for services” in the definition of “employer”, the legislature signaled its intent to capture employer‑independent contractor relationships under the “employer” definition (Wyssen, at pp. 196-98). Since Wyssen found that such relationships are captured by the definition, it follows that a person can be an employer under the Act even where they lack control over the worker or the workplace. Wyssen’s interpretation applies to all employees and workplaces, including those in the construction industry.
[19] In addition, as noted in Wyssen, prior to the Act’s enactment, other pieces of worker safety legislation defined “employer” in a way that excluded independent contractor relationships (p. 199, citing Industrial Safety Act, 1971, S.O. 1971, c. 43, s. 1(e); see also, e.g., The Construction Safety Act, 1973, S.O. 1973, c. 47, s. 1(h)). The shift in this Act to expressly include employer-independent contractor relationships within the definition of “employer” signals the legislature’s intention to remove from the definition the traditional common law control condition that distinguishes employment and independent contractor relationships. Incorporating control into the s. 1(1) definition would therefore reintroduce a characteristic of the former regime, which was abolished because it failed to adequately promote and protect workplace safety.
[20] It is also significant that while the legislature did not include control in the definition of “employer”, it did in the definition of “constructor”. In s. 1(1), “constructor” is defined as “a person who undertakes a project for an owner”; “undertaking a project” involves assuming control over it (Ontario (Ministry of Labour) v. Reid & DeLeye Contractors Ltd., 2011 ONCJ 472, at para. 42 (CanLII)). The absence of a control requirement for employers thus reflects an intentional legislative choice that must be respected.
[21] Accordingly, authorities that have read a control requirement into “employer” are irreconcilable with Wyssen, inconsistent with the text, context and purpose of the Act, and should not be followed (see, e.g., Ontario (Ministry of Labour) v. Nor Eng Construction & Engineering Inc., 2008 ONCJ 296, at para. 88 (CanLII);R. v. Marina Harbour Systems, 2008 CanLII 64002 (Ont. S.C.J.), at paras. 27‑30; R. v. EFCO Canada Co., 2010 ONCJ 421, at paras. 59‑60).
[22] It follows from the straightforward application of Wyssen, as well as the text, context and purpose of s. 1(1), that the City was an employer under both branches of the Act’s definition. I agree with the Court of Appeal that it was an employer of the inspectors, whom it employed directly and dispatched to the construction project. Further, under the second branch, the City was an employer of Interpaving, with whom it contracted to undertake the construction project. Because the definition of “employer” encompasses employer-independent contractor relationships, an owner who contracts with a constructor is an employer under s. 1(1) of the Act. The text of the “employer” definition captures a person who contracts for the services of workers, and “worker” is defined as including “[a] person who performs work or supplies services for monetary compensation”. This encompasses constructors, who perform work and supply services for monetary compensation. Thus, the reference to contracting for the services of workers in the “employer” definition clearly captures contracting with constructors. At paras 23-45, the court reviews s.25(1)(c) [SS: "Duties of Employees"] under conventional statutory interpretation doctrine and concludes:(d) The City Breached Its Duties as an Employer
[46] As an employer of the inspectors and of Interpaving, the City was required by s. 25(1)(c) of the Act to ensure that “the measures and procedures prescribed [were] carried out in the workplace”. This included ensuring compliance with ss. 65 and 104(3) of the Regulation. On the date of the pedestrian’s death, the measures required by these provisions — a fence between the construction work and the public way, and signallers — were not carried out in the workplace. Thus, the City, as employer, committed the offence under s. 25(1)(c) and its degree of control over the workplace or the workers is not relevant to this finding.
....
D. Summary
[61] In summary, a court must consider three questions where an owner who contracts for the services of a constructor on a construction project is prosecuted for a breach of s. 25(1)(c):1. First, has the Ministry proven beyond a reasonable doubt that the Act applied to the accused because the accused was an employer under s. 1(1) of the Act? An owner is an employer if it (i) employed workers at a workplace where an alleged breach of s. 25(1)(c) occurred; or (ii) contracted for the services of a worker at that workplace (including for the services of a constructor). The Ministry is not required to prove that the owner had control over the workplace or the workers there.
2. Second, has the Ministry proven beyond a reasonable doubt that the accused breached s. 25(1)(c) of the Act? There is a breach of s. 25(1)(c) if the safety measures prescribed by the Regulation are not carried out in the workplace to which the owner/employer is connected by a contractual relationship with employees or an independent contractor. Further, the Ministry is not required to prove that the owner had control over the workplace or the workers there.
3. Third, if the Ministry proves the above, has the accused proven on a balance of probabilities that it should avoid liability because it exercised due diligence under s. 66(3)(b) of the Act? Relevant considerations may include, but are not limited to, (i) the accused’s degree of control over the workplace or the workers there; (ii) whether the accused delegated control to the constructor in an effort to overcome its own lack of skill, knowledge or expertise to complete the project in compliance with the Regulation; (iii) whether the accused took steps to evaluate the constructor’s ability to ensure compliance with the Regulation before deciding to contract for its services; and (iv) whether the accused effectively monitored and supervised the constructor’s work on the project to ensure that the prescriptions in the Regulation were carried out in the workplace. . R. v. Greater Sudbury (City)
In R. v. Greater Sudbury (City) (SCC, 2023) the Supreme Court of Canada, in an unusual case where the court issued a split decision (leaving the Court of Appeal ruling governing), regarding occupational health and safety. These quotes are from the four-judge ruling (Martin JA) that would have dismissed the appeal.
In these quotes the court characterizes aspects of Ontario's Occupational Health and Safety Act:A. Overview of the Occupational Health and Safety Act
[8] The Act seeks to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace. As set out in Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 CanLII 16893 (ON CA), 58 O.R. (3d) 37 (C.A.), at para. 16:The [Act] is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided. [9] The Act’s public welfare purpose is confirmed by its history. Following the 1976 Report of the Royal Commission on the Health and Safety of Workers in Mines (“Ham Commission Report”), the Ontario government engaged in substantial legislative reform. It repealed various predecessor statutes that only provided workplace protection to employees. When the Act was introduced in 1978, it expanded the definition of “employer” to extend protection to independent contractors, reflecting “the clear intention of the legislature to make employers responsible for ensuring safety in the workplace” (see Wyssen, at p. 199).
[10] The Act fulfills its public welfare purpose by allocating various occupational health and safety duties among various classes of workplace actors, including constructors, employers, and owners (see ss. 23, 25 and 29, respectively). These duties are often concurrent and overlapping: several different actors may be responsible for the same protective functions and measures. This is known as the “belt and braces” approach to occupational health and safety:. . . the Act and Regulations use more than one method to ensure workers are protected. So, if the “belt” does not work to safeguard a worker, the backup system of the “braces” might, or vice versa. If all workplace parties are required to exercise due diligence, the failure of one party to exercise the requisite due diligence might be compensated for by the diligence of one of the other workplace parties. The purpose is to leave little to chance and to make protection of workers an overlapping responsibility.
(Ontario (Minister of Labour) v. Enbridge Gas Distribution Inc., 2010 ONSC 2013, 261 O.A.C. 27, at para. 24) [11] Under the “belt and braces” approach, where multiple workplace entities fail to safeguard health and safety, they cannot point to others’ failures as an excuse for their own; each workplace participant must ensure that the workplace is safe (R. v. J. Stoller Construction Ltd., 1986 CarswellOnt 3654 (WL) (Prov. Ct.), at para. 22; R. v. Stelco Inc. (1989), 1 C.O.H.S.C. 76 (Ont. Prov. Ct.), at pp. 83-84; R. v. Structform International Ltd., [1992] O.J. No. 1711 (QL), 1992 CarswellOnt 2751 (WL) (C.J. (Gen. Div.)), at para. 17 (WL); R. v. Thomas G. Fuller & Sons Ltd., 2008 CarswellOnt 9276 (WL) (C.J.), at para. 54; R. v. Cox Construction Ltd., 2008 CarswellOnt 9540 (WL) (C.J.), at paras. 189-92; R. v. Saskatchewan Power Corp., 2016 SKPC 2, at para. 35 (CanLII), citing Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, 87 O.R. (3d) 161). The Ham Commission Report advocated for an “internal responsibility system” whereby all workplace participants share responsibility for workplace safety, highlighted that “a safe workplace involves all participants working together in a shared responsibility system”, and recognized “a positive and proactive duty on all participants” (R. v. Campbell, [2004] O.J. No. 129 (QL), 2004 CarswellOnt 116 (WL) (C.J.), at paras. 28‑29 and 65).
|
