In Ontario, the Human Rights Code (the “Code”) entitles employees to a workplace that is free from harassment, when that harassment is based on an enumerated ground (i.e. a protected characteristic). The Code statutorily mandates that an employer needs to take reasonable steps to prevent that harassment from occurring. An employer’s failure to do so can result in substantial liability in the event that an employee files a human rights complaint under the Code.
Similarly, Ontario’s Occupational Health and Safety Act (“OHSA”) mandates that employers must provide a workplace that is safe, and free from harassment. The OHSA specifically requires employers to proactively participate in identifying and eliminating sources of harassment, including bullying behaviour, through properly administered policies, programs, investigations, and, whenever required, the application of progressive discipline. As we have identified in previous articles, these obligations are interpreted very broadly, capturing novel situations to promote and protect worker safety.
An employer’s positive obligation to intervene to address bullying in the workplace (and its subsequent failure to do so) was recently the focal point of a tragic case from Prince Edward Island (“PEI”), the matter of Eric Donovan v QCRS, 2016 PECA 1.
Mr. Eric Donovan was an employee of Queen’s County Residential Services (“QCRS”), a non-profit agency that runs group homes and programs for adults with intellectual disabilities. Based on all accounts, Mr. Donovan found his job stimulating and rewarding.
During the final years of his life, Mr. Donovan’s love for his work was replaced by stress as he felt he was being bullied and harassed at the workplace by his immediate supervisor. Mr. Donovan’s stress became so bad that his wife, Lisa, began to fear for his wellbeing. On October 31, 2013, Mr. Donovan collapsed at his home. He died a few days later of cardiac arrest at age 47.
Witness accounts from Mr. Donovan’s co-workers confirmed that his supervisor was a known workplace bully, who frequently took advantage of Mr. Donovan’s helpful and generous nature. The supervisor was known to have berated Mr. Donovan for a variety of different reasons. For instance, the supervisor would humiliate Mr. Donovan by repeatedly calling him weak in front of co-workers after he suffered from a compensable lower back injury at the workplace. Several witnesses stated that the supervisor was overheard advising other members of staff that he was faking his injury. According to Mr. Donovan’s widow, this happened for several months in the period leading up to his heart attack, and eventual death.
Mr. Donovan’s family believed that his declining health was a direct result of bullying and harassment that he had been subjected to by his supervisor at QCRS for an extended period of time. They believed that he would still be alive if he had not suffered bullying and harassment at the hands of his supervisor. This honestly held belief led Mrs. Donovan to file a claim for Workers’ Compensation survivor benefits on behalf of her husband’s estate, arguing that the deceased worker’s unfortunate death was inextricably linked to the bullying and harassment he suffered at the workplace.
Mr. Donovan’s claim was initially rejected by the PEI Workers Compensation Board (“WCB”), because the applicable workers compensation legislation did not state that an “accident” arising from workplace bullying could constitute a “compensable” work-related injury or illness. The WCB ruled that it did not have jurisdiction to consider the complaint because its governing statute did not expressly authorize claims for “psychological accidents”.
The WCB’s decision was appealed by Mrs. Donovan and upheld by the PEI Supreme Court in 2015. Mrs. Donovan pressed on, and in 2017 the PEI Court of Appeal overturned the WCB’s ruling on the basis that the definition for the term “accident” in PEI’s Workers Compensation Act was “broad enough to include accidents resulting from workplace bullying”. The PEI Court of Appeal referred the matter back to the WCB to determine whether there was any basis for a compensable workers’ compensation claim.
Taking direction from the Court of Appeal, the WCB reviewed the evidence (including witness statements and accounts provided by Mr. Donovan’s co-workers) and determined that there was sufficient evidence to indicate that the cardiac arrest suffered by Mr. Donovan was the result of workplace bullying and harassment he had suffered at the hands of his supervisor. In reaching its decision, the WCB noted that there was no pre-existing medical condition that could have caused Mr. Donovan’s death. As a result, the WCB awarded survivor benefits to Mr. Donovan’s family.
PEI’s Legislative Response
All Provinces and Territories across Canada have implemented some sort of legislative mandate to require employers to actively prevent harassment in the workplace. In Ontario, Bills 168 (2010) and 132 (2016) introduced provisions into the OHSA that, among other things, require employers to take positive steps to prevent harassment (including sexual harassment) and violence in the workplace. Bills 132 and 168 also created mandatory workplace investigation rules that require employers to conduct an investigation that is “appropriate in the circumstances” into any and all complaints or incidences of workplace violence, workplace harassment and workplace sexual harassment.
In direct response to the Eric Donovan case, PEI has gone one step further, potentially paving the way for similar legislative responses in other provinces. In November 2018, the province introduced new legislation specifically geared toward preventing physical violence, harassment and bullying, as well as psychological harassment. PEI’s Bill 42, entitled the Eric Donovan Act (An Act to amend the Occupational Health and Safety Act), introduced significant changes to the province’s health and safety legislation by adding the word “psychological” to the definition of workplace harassment. This change came into force on December 5, 2018.
PEI vs. Ontario – Potential Implications for Ontario Employers
By contrast to PEI’s Occupational Health and Safety Act, Ontario’s OHSA does not feature explicit language creating “positive obligations” that relate specifically to work-related psychological harassment or bullying. However, publications issued by the Ministry of Labour appear to suggest that employers may soon be required to take positive steps to prevent, remedy, investigate or minimize the risks of psychological harassment at the workplace. For instance, the Ministry’s website states:
This definition of workplace harassment is broad enough to include harassment prohibited under Ontario’s Human Rights Code, as well as what is often called “psychological harassment” or “personal harassment.
Although the Ministry’s position is that the existing harassment language under the OHSA is “broad enough to include” psychological harassment, no specific legislative provisions have been enacted to mirror the approach adopted by legislators in PEI. Further, our review of case law under the OHSA suggests that if the foregoing approach is being officially adopted, it is not being stringently enforced by the Ministry and its Inspectors. It is noted that publications issued by the Ministry of Labour do not have the force of law.
Nevertheless, employers across the nation should take note of the legislative changes being implemented in PEI. Legislators throughout Canada quite often synchronize legislative changes (particularly those that relate to labour and employment regulations) to ensure consistency in rules that relate to worker safety across the nation. Given the extensive media focus on incidences of bullying and workplace harassment in schools and workplaces across the country, it would not be surprising to see legislators across the country follow PEI’s lead on this important issue.
Based on the form and content of legislative changes made to PEI’s Occupational Health and Safety Act under Bill 42, it appears that any ensuing changes to Ontario’s legislation (or legislation pertaining to other jurisdictions) will likely be focused on ensuring that workplace policies, programs and remedial procedures appropriately account for nuances that relate to incidences of psychological harassment. As this is such a rapidly changing area of the law, those nuances have yet to be established by regulators (including by PEI’s WCB, which is responsible for administering workers compensation and health and safety regulations in that province).
Considering the current trajectory of health and safety regulation in Ontario, if legislative changes regarding this issue are made, it appears likely that Ontario laws will line up with PEI’s current statutory regime regarding employer obligations.
Key Takeaways for Employers
Although Ontario employers are not required to implement any changes to policies and programs at this time, we would recommend monitoring this subject as it continues to evolve. In the near future, Ontario employers could be responsible for updating their health and safety policies and programs in order to account for psychological “accidents” at the workplace.
Based on the changes recently adopted by PEI and the basic requirements established by current Ontario laws, we anticipate that these changes will likely include:
- Ensuring that a workplace program is in place to identify how to file a report or complaint of psychological harassment, including how complaints of psychological harassment will be dealt with;
- Ensuring that employees are provided with instruction and guidance on the relevant policies and procedures that relate to psychological harassment;
- Ensuring that relevant policies and procedures are developed and maintained in consultation with the Joint Health and Safety Committee (or the designated Health and Safety Representative, as may be the case);
- Reinforcing employer obligations to conduct an investigation that is “appropriate in the circumstances” into any and all claims of workplace harassment, bullying and violence, including psychological harassment;
- Informing workers who have allegedly experienced workplace harassment and the alleged harasser (if they are a worker of the employer) in writing of the results of the investigation and any corrective action that has been or will be taken;
- Reviewing relevant policies and procedures as often as necessary, but at least once per year.
As always, we will provide follow-up coverage on the rules and regulations pertaining to work-related psychological harassment as and when further updates are available. Stay tuned!
Written by Tushar Anandasagar
Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C., practicing exclusively on the Management side of Labour and Employment Law. He works in all areas of HR law, with a particular focus on Workplace Health and Safety compliance and related issues. For further information or discussion, please contact Tushar by email at Tushar@leclairandassociates.ca.