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2018-11-23T10:08:48+00:00 November 23, 2018|Employment Standards, Occupational Health and Safety|

Reprisals Under the Occupational Health and Safety Act

Reprisals Under the Occupational Health and Safety Act

There are lots of cases at the Ontario Labour Relations Board decided under the reprisal section of the Occupational Health and Safety Act (section 50).  I wrote about this in the September 2018 Legal Alert where I discussed the case of William Joseph Thorogood v North 44 Property Management, 2018 CanLII 8272.  The OLRB in Thorogood relied on Fullerton v. Nygard International, 2008 CanLII 67281 (ON LRB), 2008 CanLII 67281: 

The combined effect of these provisions is that, for the Board to find that there was a reprisal in this matter, it must be satisfied that the applicant was engaged in the exercise of his statutory rights, and that the exercise of those rights was a motivating factor, no matter how small, for Nygard’s decision to terminate the applicant’s employment. Even if the employer has what would otherwise be legitimate reasons for termination, if one factor in the decision is the applicant having exercised his rights under the OHSA, the termination will be found to be a violation of section 50 of the OHSA (see for example, MLG Enterprises Limited, [1994] OLRB Rep. Nov. 1550). 

The OLRB reiterated the reverse onus that exists under section 50 of the OHSA.

The most recent case is David Knapp v Greenbank Custom Woodworking Ltd., 2018 CanLII 107787 (ON LRB).  The applicant alleged that his employment with the responding party was terminated immediately following and as a result of his raising health and safety issues.  He filed an application under section 50 of the OHSA.  The employer did not respond and did not attend at the hearing.  According to the OLRB:

Based on Rule 2.3 the Responding Party is deemed to have accepted all of the facts set out in the application.  Accordingly, the Responding Party did not satisfy the onus placed upon it by subsection 50(5) of the Act.  Given the timing of the Responding Party’s actions in terminating the employment of the Applicant on the day following the raising of health and safety concerns, and the failure to offer any other explanation for its actions, the Board finds that the Responding Party contravened section 50(1) of the Act.

The presumptive remedy for a finding of reprisal is to reinstate the employee and provide compensation for lost wages from the date of discharge to the date of hearing subject to mitigation (North 44 Property Management (supra))  The Applicant in this case has waived his right to reinstatement but does seek compensation for lost wages.

But certain damages were claimed in the Knapp case that are worth having a deeper look at (particularly since these reprisal complaints are being brought with greater frequency).  

Damages for the Loss of the Job Itself  

These damages were described in Amos v 2359251 Ontario Inc.(Dino & Kidz Early Learning Centre), 2015 CanLII 72818:

This is a head of damages which addresses an employee’s reasonable expectation of continued employment with an employer which has unlawfully dismissed her.  The Board has often referred to its fullest articulation in Wyeth-Ayerst Canada Inc. 1988 OESAD No. 16 a case arising under employment standards legislation.  There, the adjudicator wrote:

This head of damages is commonly referred to as compensation for loss of the job itself.  Adjudicator/Referees have long recognized that there is, to the individual who suffers as a result of an employer’s breach of the Act, some inherent value in having had the job.  This seems obvious:  If an employee has a job, has a regular source of income and benefits, and is suddenly and wrongly deprived of that job, the individual has to begin the process of seeking new employment, suffers loss of income, incurs expenses to look for a new job, and must begin over at a new place of employment if s/he is able to find new employment.  The individual may have lost opportunities which would have accrued to him/her at the original place of employment, and may also lose future income.  There are additional less tangible benefits to having a job, like accruing seniority or length of tenure, building relationships, and strengthening self-esteem through familiarity with the job requirements.  All of these are lost when an employee is terminated.

In Sense Appeal supra the Board noted that this is a head of damages distinct from the concept of reasonable notice for wrongful dismissal, although its calculation shares as a basis with that concept, the length of time which an employee has vested in the job.  Citing there a decision of Vice-Chair Kelly in Holcim Canada Inc. #2 2012 CanLII 59255 (ON LRB) the Board accepted that damages under this heading are ordinarily awarded on the basis of one month per year of service with the employer.  But this is a rule of thumb rather than a rigid formula, particularly where the term of employment prior to dismissal is less than a full year.  Thus, in LP Services, supra the dismissed employee was awarded four weeks’ wages under this head of damages, having been employed for twelve weeks prior to his dismissal.  Similarly, in Grand Tappattoo Resort, supra, the dismissed employee was awarded four weeks’ wages under this head of damages, having been employed for fourteen weeks prior to his dismissal.  Both were cases of reprisal dismissal contrary to the provisions of OHSA s.50(1).

Obviously, depending on the circumstances, these damages can be extensive, notwithstanding that this is just a rule of thumb.

Claim for Aggravated Damages

A leading case, albeit under the Employment Standards Act, 2000 reprisal sections is Dana Hospitality Inc., [2011] O.E.S.A.D. No. 4:

With respect to emotional pain and suffering, [the claimant] has not tendered any cogent medical evidence with respect to her assertion of the impact the termination had on her health. None of the other circumstances of the termination lead to a presumption that it would have entailed significant emotional suffering beyond that occasioned by any job loss. She was not a long-term employee. She was not terminated because of pregnancy or for other discriminatory reasons which might have impacted her ability to find other work. She was not terminated from a situation where she had been “like a family member” or where her former employer was essentially the only employer in her community and where family members continued to work. There is no allegation that the employer did anything that made it more difficult for her to obtain employment or income replacement benefits following her termination, such as disavowing the employment relationship or withholding her Record of Employment. These are some of the considerations the Board has taken into account in determining that a measure of damages for emotional pain and suffering is appropriate in a section 74 reprisal situation. 

Are medical documents required?  In Sparkling Distribution Inc. [2009] O.E.S.A.D. No. 32, the Board accepted that a claim for pain and suffering need not necessarily be supported by medical documentation, but that the failure to seek medical assistance may throw doubt upon the credibility of such a claim.  In Shi, the terminated employee did not claim to seek medical attention for the physical discomfort she says she suffered. Nonetheless, the Vice-Chair said “I think, tend to aggravate the normal anxiety that any individual would experience as a result of the termination of employment.  Therefore, I find that Ms. Shi is entitled to $1000 under this category.”

I recently wrote an article entitled Evidence Needed to Be Awarded Mental Distress and Aggravated Damages in my client newsletter that discusses the evidentiary foundation needed to establish an entitlement to aggravated damages (albeit in a common law context, not a statutory context).  The latest word on this comes from a case called Cottrill v. Utopia Day Spas and Salons Ltd., 2018 BCCA 383 (CanLII) out of the British Columbia Court of Appeal.

But there seems to be a distinction between common law entitlement to aggravated damages and a statutory anchor to the claim which is based upon the intergrity of the statute itself.  As the Tribunal said in Sense Appeal Coffee Roasters:

I wrote earlier that “The very integrity of the ESA is under assault in the case of employer reprisal against an employee for seeking its enforcement; and if left unaddressed by the state, such reprisal would eventually reduce the statute to an enactment ‘writ on water’.”  This is a classic case in which an employee’s confidence in the legal system has been shaken by the unlawful action of an employer.  As Vice-Chair Kelly noted in Holcim (Canada) Inc., such would “tend to aggravate the normal anxiety that any individual would experience as a result of the termination of employment.”[at para.28].  Clearly such was the case here, and for that aggravated anxiety due to the employer’s misconduct, Mr. Tenace is entitled to damages.  I assess these at $2500.

In Knapp the OLRB awarded $2500 in aggravated damages on the basis of the following evidence:

In this case the Applicant’s unchallenged testimony was that he was “shocked” on learning that his employment had been effectively terminated immediately after raising health and safety concerns with his employer.  I accept that he was “stressed” and “upset” by the actions of the Responding Party particularly given the manner of the communication by text message and the order to leave the premises after advising Mr. Martinek that he would be contacting the Ministry of Labour.  He understandably felt betrayed by Mr. Martinek and was sufficiently humiliated by the actions of the Responding Party that he was not able to advise his spouse that he was unemployed for several days.  The Applicant’s stress and anxiety which would normally follow the loss of employment were certainly aggravated in this case by the cause of that loss.  In violating the Act the Responding Party caused the Applicant aggravated damages for which he is entitled to be compensated in the amount of $2,500.00.

Conclusion

Anecdotally, I have found that section 50 complaints under the OHSA are being filed with increasing frequency.   I’m not sure why this is, but these cases demonstrate that timing is important.  So is showing up and defending yourself.  The employer did not participate in Knapp and the remedial order, based on the uncontested and accepted facts (Rule 2.3 of the Rules of Procedure), was significant, including an award of aggravated damages.  The Board continues to find that it does not have the jurisdiction to grant legal costs and there is little disincentive to pursuing these claims (and, as in human rights cases, the policy is that disincentives are to be discouraged given the nature of these claims).