The Test for Reprisal Under Section 50 of OHSA

If you have been terminated after raising health and safety concerns to your employer, you may feel that your termination was a reprisal.

You may also consider bringing a complaint to the Ontario Labour Relations Board, but how will the Board decide your case? When and how does a termination become a reprisal under Ontario’s Occupational Health and Safety Act?

A guest post by Henry Bertoia

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The Basic Test

In Fullerton v. Nygard, 2008 CanLII 67281 (ON LRB), a case regarding a complaint of reprisal under Section 50 of the OHSA, the Board set out the basic test.

For a reprisal to be found, the Board must be satisfied that:

1. the employee was exercising their statutory rights under the OHSA, and
2. the exercise of those rights was a motivating factor, no matter how small, in the employer’s decision to terminate the employee’s employment.

Even if the employer has what would otherwise be legitimate reasons for termination, if just one factor in the decision is that the employee exercised their statutory rights under the OHSA, the termination will be found to be a reprisal.

Additionally, employers should be aware that subsection 50(5) of the OHSA creates a reverse onus on the employer, in the event of an allegation of reprisal, to satisfy the Board that they did not terminate the employee for acting in compliance with the OHSA or seeking its enforcement.

So, does this mean that an employee must only raise the issue of a reprisal, and the employer then has the sole responsibility to rebut it?

There Must be a Reasonable Inference or Nexus

Not so fast; as is common in the law, the two-part test in Fullerton is not the whole story.

In Ljuboja v. Aim Group Inc, 2013 CanLII (ON LRB), at paragraph 23, the OLRB set out an updated test, adding a third element that must be considered: is there “some basis for drawing a reasonable inference of a ‘nexus’” between the employee’s alleged compliance with the OHSA, and the alleged reprisal?

23. The focus in this case is therefore on whether Mr. Ljuboja was complying with the Act, seeking to enforce the Act or giving evidence in a proceeding under the Act and whether he was penalized or retaliated against by his employer, or person acting on behalf of his employer, as a result. This requires the following elements:

a. alleged compliance with the Act, attempt to enforce the Act or testimony in a proceeding under the Act;

b. an alleged reprisal; and,

c. some basis for drawing a reasonable inference of a nexus between the two.

In Alex Lau v Workplace Safety and Insurance Board (WSIB), 2022 CanLII 30759 (ON LRB), the Board further clarified that bald allegations of reprisal are not sufficient to establish a case for reprisal under the OHSA absent the presence of a nexus, or connection, between the employee seeking to comply with or enforce the OHSA, and their termination.

In Lau, the employee was already undergoing an unrelated disciplinary process, with the potential for dismissal, when he made his complaint. The OLRB ultimately found that the employer’s decision to terminate was unrelated to his subsequent complaint, despite the fact that the complaint was a valid attempt to enforce his rights under the OHSA. The Board explained at paragraph 17:

“…the fact that a worker invokes the Act by filing a harassment complaint (or otherwise), does not automatically shield him or her from adverse employment results thereafter, nor does it lead to the automatic conclusion that any subsequent adverse employment result, or treatment that runs contrary to the worker’s desires, is a reprisal in the absence of an apparent nexus between the two.”

Put simply, while the employer ultimately bears the burden of disproving a claim of reprisal, an employee (and an employee’s lawyer…) should not expect that simply raising the spectre of a reprisal will be enough; there must be a connection between the alleged reprisal and the employee’s alleged compliance with the OHSA.

Summary

If you believe that a reprisal may have occurred, consider the following:

1. Did you comply with or attempt to exercise your rights under the Occupational Health and Safety Act?
2. Afterward, did you experience some form of adverse employment result such as discipline or termination?
3. Is there some basis for drawing a reasonable connection between the two, i.e. was your attempt to exercise your rights a motivating factor for your employer to discipline or terminate you?

Where these three elements can be shown, the Ontario Labour Relations Board is likely to consider this a matter of reprisal, and it falls to your employer to prove otherwise.

Contact Me

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 have 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.