Sometimes it is not so much what you say, but rather how you say it that matters.
In Derya Marquardt v Rasmussen Starr Ruddy LLP, 2022 CanLII 9123 (ON LRB), the Ontario Labour Relations Board held that an employer’s decision to deem the employment relationship at an end was prompted by the manner in which the employee communicated her concerns and her insubordination, and not by the fact that she was seeking compliance with or exercising rights under the Occupational Health and Safety Act.
Facts
The case concerned an application by Ms. Derya Marquardt filed under section 50 of the Occupational Health and Safety Act, alleging an unlawful reprisal by her employer, Rasmussen Starr Ruddy LLP / 1550457 Ontario Inc., an Ottawa law firm. Ms. Marquardt alleged that she was terminated from her employment as a consequence of seeking enforcement of the OHSA and/or exercising her rights under the Act.
RSR defended the Application, asserting that it did not reprise against the Applicant because she sought enforcement of the Act or exercised her rights under it. It maintained that the Applicant repudiated her employment contract when she advised the firm that she would not return to work without a commitment from management that it would renegotiate her employment contract and discipline one of its members.
The events at issue all occurred over a period of about four or five days between March 18 and March 22, 2020, in the early days of the COVID-19 pandemic in Ottawa and primarily center on Ms. Marquardt’s concerns about the virus and the law firm’s response thereto. Those events are detailed in the Board’s decision and need not be set out here.
Germane to this post is an email Ms. Marquardt sent to the whole of the firm (staff and lawyers) on March 22, in which she wrote the following:
I would like to return to work but before returning have to ensure that:
1. The health and safety standards are being complied with at RSR, that 3 clear days have passed (considering the Virus stays on surfaces for 3 days) as well as full disinfection of the whole office after the last sick person was allowed by management to work in our office (I believe Friday was the last day a sick person attended the office so this would make Tuesday the next safe day at RSR; should a sick person attend the office on Monday (23rd) then the next clear day would be Thursday (26th));
2. Remote access be granted to the whole firm immediately;
3. Ron has been disciplined appropriately;
4. A commitment from management that they will not continue their retaliatory targeted harassment towards me (nor anyone else who should show health and safety concerns) - that my contract be renegotiated to minimize RSR partners from having disciplinary authority over me to avoid future retaliatory behaviour or the perception thereof - to be renegotiated at a time when cooler heads prevail;
5. RSR changes the Health and Safety Officer to a support staff member (to be picked by staff) in compliance with the law - as it stands now it's a clear conflict of interest and would be preferable to changing this without it being documented by any outside enforcement entities - I will accept a promise that this is acceptable;
6. That all international travellers not be allowed to attend work until after the 2 week government mandated quarantine - enforcement of such rule - the only information we have about these co-workers returning are their out of office reply emails which still state return to work within the 2 week quarantine time frame; and
7. That Covid-19 employee rights be posted in the kitchen as provided for by the Ontario Human Rights Commission or any other authoritative entity.
Since my privacy was infringed upon in the events you mention below and by Ron's public outburst towards me, I find it appropriate to reply to the whole firm, as well as leading the way in transparency, this will also help keep gossip, rumours and incorrect information to a minimum.
I look forward to returning to a safe and healthy work environment which I am encouraged to believe that RSR management is eager to provide and fulfill as well as your positive reply to my aforementioned requests to ensure a safe, healthy and conflict-free work environment for everyone at RSR.
RSR management believed that the seven conditions Ms. Marquardt demanded be met before she returned to the office constituted an attempt to change the reporting structure and management style of the firm so as to constrain its operation. It viewed Ms. Marquardt’s demands that she be subject to the authority of Mr. Ruddy only and that Mr. Price be disciplined as amounting to insubordination, and a repudiation of her employment contract. The firm believed that Ms. Marquardt’s e‑mail contained false and defamatory statements (particularly regarding the incident with Mr. Price).
On March 23, 2020, the firm sent a letter by courier to Ms. Marquardt. The letter stated (in part):
We have your emails of March 22, 2020 addressed to everyone at Rasmussen Starr Ruddy.
You have been very clear in stating that you will not return to work at Rasmussen Starr Ruddy unless we comply with your demands to restructure our management model for the running of our firm.
Please be advised that we are satisfied with our management model. We therefore immediately accept your repudiation of your employment agreement signed with 1550457 Ontario Inc.
Given your choice to repudiate your employment agreement with us we will be providing you with your Record of Employment together with all outstanding pay accrued to today's date along with unused vacation accrued to date.
The legal question was whether the firm’s actions constituted an unlawful act of reprisal, contrary to section 50 of Ontario’s Occupational Health and Safety Act.
Decision of the Ontario Labour Relations Board
Vice Chair Kelly Waddingham gave the following reasons for the Board’s decision to dismiss the reprisal application:
65. The Board has determined that by refusing to work or do particular work pursuant to subsection 43(3) of the Act, a worker may be either “acting in compliance with the Act” or “seeking enforcement of the Act” In either case, the worker is protected from reprisal by their employer by subsection 50(1) of the Act. The relationship between subsections 43(3) and 50(1) and the limits of the protection afforded by the latter were explained in Toronto Transit Commission, at paragraphs 56, 58, and 59: […]
66. The limits of the protection afforded by subsection 50(1) were also discussed in Timbercreek Asset Management Inc., supra, and in Corrosion Service Ltd., supra. In the former, the Board observed:
83. Section 50(1) is not necessarily contravened simply because an employee who engages in protected activity is terminated. In such cases, the employer bears the onus of satisfying the Board that the termination occurred for reasons unrelated to the engagement in the protected activity. There are a number of instances in which employers have persuaded the Board that the employee’s manner of raising his or her health and safety concern or his or her previous work history were [sic] the reason for the termination.
In Corrosion Service Ltd., the Board remarked:
75. In circumstances like this, it is difficult to distinguish an employer’s reaction to the unwelcome exercise of a health and safety right from its reaction to how the safety right is exercised. The Board must be mindful that the exercise of a right under the Act is, in a sense, an act of insubordination, in that the employee may be acting directly contrary to the employer’s desires and perhaps even commands. The Board must be careful not to discourage the exercise of rights under the Act. Employees must have the right to act forcefully to ensure health and safety is not compromised. That being said, the normal workplace rules regarding decorum and respectfulness apply. […].67. The operation of section 50 and the inquiry to be undertaken by the Board were explained in Algoma Steel Inc.
74. In an application under section 50 of the Act the applicant must establish that he or she was acting in compliance with the Act, or sought the enforcement of the Act or regulations made thereunder, and that he or she suffered one of the adverse consequences described in subsection 50(1) of the Act. Once those elements are established, subsection 50(5) of the Act imposes upon the responding party the onus of persuading the Board, on the balance of probabilities, that its actions in relation to the applicant were not prompted even in part by the applicant’s reliance upon the provisions of the Act, or attempts to enforce the Act. If the inquiry by the Board concludes that it was more likely than not that the act engaged in by the employer was for one or more reasons unconnected to the Act, the employer will not be found in violation. If, however, the employer was motivated in any way by the applicant’s exercise of rights under the Act, the Board will find a breach of section 50 of the Act.
75. The focus of an inquiry under section 50 of the Act is the alleged reprisal and the employer’s motivation, not the alleged underlying safety issue. A section 50 complaint may succeed or fail without any determination by the Board regarding the underlying allegation.
68. The first question to be addressed is whether or not the Applicant was exercising a right under the OHSA and/or seeking enforcement of the Act. It is evident from her e-mail communications with the firm on March 18 and March 22, 2020 that Ms. Marquardt was not entirely familiar with the provisions of the OHSA (for example, an employer’s obligation to “provide a safe and healthy work environment” is not set out in Part V of the Act, as Ms. Marquardt stated in her March 18, 2020 e-mail). Nonetheless, Ms. Marquardt clearly understood that her employer had some obligations under the Act with respect to health and safety in its workplace, and that she had the right to refuse to work if she had reason to believe her health or safety was at risk.
69. Ms. Marquardt refused to return to work on March 19 and 20, 2020 because she believed she was at risk of being exposed to COVID‑19, and because she believed she might be subject to fallout from her “confrontation” with Mr. Price. The evidence does not support the conclusion that her concerns were improperly motivated or frivolous. The Board accepts that in refusing to return to work without further assurances from RSR that her health and safety would be protected, Ms. Marquardt was exercising her right under Part V of the OHSA (in particular, subsection 43(3), clause b). The Board also accepts that Ms. Marquardt was seeking “enforcement of the Act” at the time her employment with the firm ended. As of March 18, 2020, it was her view that RSR was not enforcing its policy (set out by Ms. Benoit on March 12, 2020) that sick employees and lawyers stay home. It was not argued in this case that “enforcement” in subsection 50(1) means seeking an inspection pursuant to Part VIII of the Act (“Enforcement”). In any event, the Board has rejected a narrow interpretation of the word “enforcement”, and allows that seeking compliance with the Act is the same as seeking enforcement of the Act for the purposes of subsection 50(1). Accordingly, the Board finds that Ms. Marquardt was acting in compliance with the Act and was seeking enforcement of the Act at the time her employment with RSR ended.
70. The Applicant suffered two employment consequences in March 2020 – the denial of remote access to her RSR e-mail account, and the termination of her employment. For the purpose of determining whether the consequences fall within the adverse employment consequences described in subsection 50(1) and whether they were imposed because the Applicant acted in compliance with or sought enforcement of the Act, the Board will consider each consequence separately.
71. The Board finds that the Applicant suffered an adverse employment consequence for the purposes of subsection 50(1) when she was denied remote access to her RSR e-mail account. While it is true that as of March 18, 2020, RSR had not yet provided remote access to assistants of the firm’s associate lawyers, the evidence of Ms. Authier (regarding her text exchanges with Ms. Grue) suggests that it was moving in that direction. Furthermore, on March 22, 2020, the firm’s website indicated that the firm was “set up to work remotely”. However, the firm, as indicated by Ms. Authier’s testimony, made a conscious decision on March 18, 2020 not to allow Ms. Marquardt remote access to her RSR e-mail account. This situation was not changed following Ms. Marquardt’s enquiries to Ms. Benoit on March 19 and 20, 2020. The Board finds that by denying Ms. Marquardt remote access, RSR imposed a penalty upon the Applicant within the meaning of clause (c) of subsection 50(1).
72. However, the evidence presented does not support the conclusion that Ms. Marquardt was denied remote access because she exercised a right under the OHSA or sought its enforcement. The evidence instead supports the conclusion that the action was taken in response to Ms. Marquardt’s use of her firm e-mail account to make inflammatory remarks about the firm’s management to all of the firm’s staff and lawyers (i.e., management was “not interested in providing a safe and healthy work environment”) and to disparage management to persons outside the firm (i.e., her e-mail to Mr. Ruddy’s children). Her use of her RSR e-mail account flouted normal workplace rules of decorum and respectfulness, and warranted a response from the firm. The response might be better characterized as a “defensive” response rather than a “disciplinary” one, as the firm’s management sought to limit possible damage to the firm’s reputation. In the result, RSR did not, in imposing this “penalty” upon Ms. Marquardt, violate subsection 50(1) of the Act.
73. The second consequence suffered by Ms. Marquardt was the loss of her employment. This consequence, while obviously significant from the Applicant’s standpoint, is only an adverse employment consequence for the purposes of subsection 50(1) if it can be said that the Responding Party, in fact, “dismissed” her. RSR maintains that it did not take action to terminate Ms. Marquardt’s employment in response to her conduct of March 18, 2020. It also maintains that it did not “dismiss” Ms. Marquardt following the receipt of her e-mail of March 22, 2020. As set out above, RSR’s position is that Ms. Marquardt repudiated her employment contract when she refused to return to work absent an assurance from the firm’s management that it would meet certain demands set out in the e-mail.
74. Three of the seven demands set out in Ms. Marquardt’s March 22, 2020 e-mail (the Board agrees that the enumerated items are properly characterized as “demands” rather than “requests”) are in relation to health and safety in the face of the onset of the pandemic (namely, demands 1, 2 and 6). Demand 5 calls for the firm to comply with the Act in respect of the appointment of a health and safety representative for the workplace. All of these demands arguably fall within an employee’s right to seek compliance with the Act or to, as the Board stated in Corrosion Service Ltd., supra, “act forcefully to ensure health and safety is not compromised”. Demand 3 (seeking the disciplining of Mr. Price) and Demand 7 (seeking the posting of “Covid‑19 employee rights”) are not related to compliance with the OHSA. In its response to the Application, RSR identifies Demand 3 and adverts to other demands (“[purporting] to dictate to the partnership how the firm would be run in future”) as forming part of the basis for its conclusion that Ms. Marquardt “demonstrated a clear and calculated intention to no longer be bound by the terms of her employment”. However, it is clear from the response and from the text of its letter of March 23, 2020 that the firm’s determination was based principally on the fourth demand set out in Ms. Marquardt’s March 22, 2020 e-mail. The fourth demand calls upon management to renegotiate Ms. Marquardt’s employment contract to eliminate (or “minimize”) management’s disciplinary authority over her. The Board agrees with the Responding Party that the demand constitutes a repudiation of the employment contract.
75. Ms. Marquardt’s employment was with 1550457 Ontario Inc. Partners of the firm are the principals and managers of that entity. Michael Ruddy is not a partner of RSR, and has no involvement in the operation of 1550457 Ontario Inc. Ms. Marquardt worked for Mr. Ruddy, but her employment relationship was not with him, and he did not have direct managerial authority over her. As long as she was employed by 1550457 Ontario Inc., Ms. Marquardt would be subject to the managerial authority (including the disciplinary authority) of the managers of that entity – the partners of RSR. Such authority was therefore a fundamental term of her employment contract. By stating that she would not return to work absent a commitment from her employer that it would agree to divest itself of disciplinary authority over her, Ms. Marquardt was effectively refusing to continue her employment under her existing employment contract. RSR reasonably regarded the action as a “repudiation” of the contract. While “repudiation” of a contract in an employment context may not constitute “resignation”, it may be sufficient reason for an employer to terminate an employment relationship (see: Anderson v. Total Instant Lawns Ltd., 2021 ONSC 2933, at para. 28). The Board finds that that is what happened here. That being the case, Ms. Marquardt’s employment was terminated for a reason that is not connected to seeking enforcement of or exercising rights under the OHSA.
76. Even if Ms. Marquardt did not repudiate the employment contract and if she was, in fact, dismissed, the Board nonetheless finds that – on the balance of probabilities – her dismissal was not prompted by her reliance upon the provisions of the OHSA or her attempts to enforce it. In reaching this conclusion, the Board has had regard to the caution set out in Corrosion Service, supra, that it can be “difficult to distinguish an employer’s reaction to the unwelcome exercise of a health and safety right from its reaction to how the safety right is exercised.” The Board has carefully examined the circumstances that led to Ms. Marquardt’s loss of employment and is satisfied that RSR’s actions were prompted by the manner in which Ms. Marquardt communicated her concerns and her insubordination, and not by the fact that she was seeking compliance with or exercising rights under the Act.
77. Even limiting the appraisal of her conduct to the March 22, 2020 e-mail, Ms. Marquardt went beyond acting forcefully to ensure that her health and safety in the office was protected. As is the case with e‑mails Ms. Marquardt sent on March 18, 2020, statements she made in the March 22, 2020 e-mail were made without regard to "the normal workplace rules regarding decorum and respectfulness". The statements include allegations that the firm was using Mr. Ruddy’s computer illiteracy as a pretext for denying her remote access, that Mr. Price had damaged staff-management relations in the office with “his public aggressive confrontation”, that Ms. Benoit “created” the situation resulting in the confrontation with Mr. Price, and that management was engaging in a program of “retaliatory targeted harassment” towards her. While it may go too far to say that she was "cloaking her attack [on management] in the guise of health and safety" (Norbord Industries Inc., supra, at paras. 109 and 133), her conduct nonetheless crossed the line into insubordination that is not protected by the OHSA. Whether she repudiated her employment contract or was dismissed for insubordination by the firm is not material in view of the Board’s conclusion that there was no nexus between the loss of her employment and her exercise of rights under the Act.
78. In reaching this decision, the Board is mindful of the fact that the events that befell the Applicant began with a reasonable enquiry to – and request for an assurance from – RSR management in the face of an unprecedented looming public health emergency. That enquiry was met with what can reasonably be regarded as a dismissive (and, possibly, provocative) one-line response. If Ms. Marquardt had proceeded to press her health and safety concerns with management – either directly, or through Mr. Ruddy – in a manner that demonstrated respect for management’s authority over her employment, the situation might have played out differently. Unfortunately, the course of conduct she embarked upon gave her employer sufficient reason to conclude that its employment relationship with her was at an end, or should be terminated.
Commentary
This case is interesting because one can clearly see a temporal nexus between the Applicant’s assertion of her rights under OHSA and the decision to terminate her employment. Most would assume that such temporal connection would be enough to ground a case for reprisal.
That said, one cannot help but agree that things could have been approached much differently. And, had Ms. Marquardt proceeded to press her health and safety concerns with management, in a manner that demonstrated respect for management’s authority over her employment, the situation might have played out differently.
Put another, and as I stated at the outset of this post, sometimes it is not so much what you say, but rather how you say it that matters.
Contact Me
Whether you are an employee who believes that your employment has been terminated because you have attempted to assert your rights under Ontario’s Occupational Health and Safety Act or an employer responding to such an application, Sean Bawden is Experience. At Work.
I am an experienced employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, which is based in Ottawa. I have appeared in courtrooms all across Ontario from Stratford, to L’Orignal, to Thunder Bay.
For 2.5 years I was in-house legal counsel providing employment law advice to one of Canada’s largest corporations and appeared in labour courts and tribunals literally the world over.
I am also been a part-time professor at Algonquin College teaching Employment Law. I have previously also taught Trial Advocacy for Paralegals and Small Claims Court Practice.
I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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