reprisal cases recent developments
TRANSCRIPT
REPRISAL CASES: RECENT DEVELOPMENTS
DARYL CUKIERMAN ASSOCIATE
416.863.2585 [email protected]
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SARAH EMERY
SUMMER STUDENT 416.863.2742
TABLE OF CONTENTS
Page
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I. INTRODUCTION................................................................................................. 1 II. THE ONTARIO HUMAN RIGHTS CODE: REPRISALS UNDER
SECTION 8.......................................................................................................... 2 (i) Navigating Between Discipline and Reprisal: Stevens v. Nothing
But Water Products and Noble v. York University..................................... 4 (ii) Reprisals Where the Original Claim Was Unsubstantiated: Chan v.
Tai Pan Vacations and Bertrand v. Primary Response Inc ....................... 7 (iii) Reprisal Remedies: Kohli v. International Clothiers .................................. 9 (iv) Conclusion .............................................................................................. 11
III. THE EMPLOYMENT STANDARDS ACT, 2000: REPRISALS UNDER SECTION 74(1) ................................................................................................. 11 (i) Threshold for Engaging in a Protected Activity: Ontario Line
Clearing & Tree Services Ltd. and Holcim (Canada) Inc......................... 15 (ii) Reprisals with Respect to Leaves of Absence: Marineland of
Canada Inc. and Moeller Electric Ltd ...................................................... 18 (iii) Remedies: P & L Corporation Ltd. and Dana Hospitality Inc................... 22 (iv) Conclusion .............................................................................................. 24
IV. THE PUBLIC SERVANTS DISCLOSURE PROTECTION ACT: REPRISALS UNDER SECTION 19 .................................................................. 25 (i) Background............................................................................................. 25 (ii) Reprisals Under the PSDPA ................................................................... 26 (iii) Causation/Nexus Requirement ............................................................... 27 (iv) Remedies................................................................................................ 28 (v) Disciplinary Orders ................................................................................. 29 (vi) Tribunal Discretion.................................................................................. 30 (vii) Conclusion .............................................................................................. 32
REPRISAL CASES: RECENT DEVELOPMENTS
Daryl Cukierman and Sarah Emery
I. INTRODUCTION
In Ontario, the Human Rights Code (the “Code”),1 and the Employment
Standards Act, 2000 (the “ESA”),2 both prohibit employers from reprising against an
employee where the employee has asserted statutory rights under the legislation.
While each provision has distinct wording, the jurisprudence reveals similarities
between how the various reprisal provisions have been interpreted and what actions
they proscribe. Both the Human Rights Tribunal of Ontario (the “HRTO”) and the
Ontario Labour Relations Board (the “OLRB”) have generally given a broad
interpretation to the applicable statutory provisions in considering whether an
employer’s particular actions constitute a reprisal. For example, behaviour such as an
employer’s withholding of employment opportunities, or actions that suggest intimidation
of an employee, have been found to be reprisals. The case law has also granted
employees reasonable leeway in advancing a claim pursuant to the reprisal provisions.
There is generally no requirement, for example, that the employee name the particular
piece of legislation at the time of the alleged reprisal, nor are employees generally
required to explicitly state that they are acting in accordance with their rights.
This paper will canvas recent case law and relevant secondary sources in
assessing the basic framework of the reprisal provisions under the Code and the ESA.
It will also consider the reprisal provisions under the Public Servants Disclosure
Protection Act3 (the “PSDPA”), a relatively recent piece of legislation which applies to
the federal public sector. The paper has been divided into three sections, with each
section covering one of the statutes enumerated above. Each section will commence
with an overview of the reprisal provisions under the applicable piece of legislation and
will then consider key principles stemming out of recent reprisal jurisprudence. Each
1 R.S.O., 1990, c. H. 19, s. 8 [Code]. 2 S.O. 2000, c. 41 [ESA]. 3 S.C. 2005, c. 46 [PSDPA].
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section will conclude by summarizing the recent developments and providing employers
with guidance on how to protect against claims of reprisal.
II. THE ONTARIO HUMAN RIGHTS CODE: REPRISALS UNDER SECTION 8
Section 8 of the Code grants employees the right to claim and enforce their rights
under the Code without fear that their employers will act against them as a result. 4
Section 8 reads:
s.8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
This provision applies to an employer’s actions with respect to current
employees, past employees5 and job applicants.6 The s. 8 reprisal prohibition has been
viewed as central to the meaningful protection of all other Code rights. For example, in
Jones v. Amway of Canada Ltd., the Ontario Superior Court stated that “[w]ithout a strict
prohibition against reprisals, the purposes and effectiveness of the statute would be
significantly diluted.”7 This centrality of the reprisal provision has led the HRTO to
interpret it broadly, especially with regard to what constitutes “claiming” or “attempting to
claim” a right under the Code. For example, in Thorogood v. International Brotherhood
of Electrical Workers,8 the HRTO held that a complaint filed by an employee with the
OLRB was in fact an attempt to assert his rights under the Code. In her decision, Vice–
Chair Sherry Liang stated:
the prohibition against reprisals under the Code may apply even if an applicant has not filed a complaint or application under the Code. It may also apply even if the applicant is mistaken in his belief that his rights under the Code have been infringed. In this case, the applicant brought an application to the OLRB because
4 Code, supra note 1. 5 See Cavaliere v. Schaeffler Canada, 2010 HRTO 2170 (CanLII). 6 See Gernon v. Toronto Police Services Board, 2011 HRTO 125; Berger v. Toronto (City) 2012 HRTO 335. 7 (2002), C.H.R.R. Doc. 02-177 at para. 4 [Jones]. 8 2010 HRTO 1852 (CanLII).
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he believed, in part, that the Local had discriminated against him in refusing to pay him benefits under the [Retirement Incentive Program]. He believed that the Code applied to his circumstances, and said so in his letter to the OLRB. In such circumstances, he had the right to make such a claim without the fear of reprisal.9
The case law also provides that an employee is not obligated to file a formal
complaint under the Code at the time of the alleged reprisal. Similarly, an employee’s
underlying claim does not have to contain a reasonable chance of succeeding for the
reprisal claim to be successful.
In determining whether an employer’s action constitutes a reprisal, the HRTO
has consistently required a connection between disciplinary or threatened disciplinary
measures and the fact that the employee has claimed a right under the Code.10 More
specifically, the employer must have intended that its actions be, at least in part,
punishment for the employee’s assertion of Code rights. This requirement of “intent”
distinguishes the reprisal provision from the Code’s other provisions under which the
HRTO can find that an employer discriminated against an employee even if it had no
intent to do so.
The HRTO succinctly summarized the overall requirements of a successful s. 8
reprisal claim in Noble v. York University in which it stated:
in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
9Ibid. at para. 25. 10 Noble v. York University, 2010 HRTO 878 at para. 31[Noble]; Jones, supra note 7; Moffat v. Kinark Child & Family Services (1998), 35 C.H.R.R. D/205 (Ont Bd Inq).
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In addition, the following principles are relevant:
a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant's substantive rights to be free from discrimination.11
If the HRTO determines that an employer has committed an act of reprisal
contrary to s. 8, it can order any or all of the following remedies:
1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.12
The HRTO’s application of these remedial provisions will be discussed in detail
below.
(i) Navigating Between Discipline and Reprisal: Stevens v. Nothing But Water Products and Noble v. York University
The cases of Stevens v. Nothing But Water Products (“Stevens”)13 and Noble v.
York University (“Noble”)14 provide insight into the difference between bona fide
disciplinary measures and acts of reprisal under the Code. In Stevens, the employer
terminated the complainant’s employment after an argument during which the
complainant, Mr. Stevens, threatened to file a claim of discrimination against his 112010 HRTO 878 at paras. 33-34. 12 Code, supra note 1 at s. 45.2(1). 13 2009 HRTO 2136 [Stevens]. 14 Noble, supra note 10.
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employer. At the time of the argument, the complainant was requesting that his
employer make changes to his record of pay so as to increase the amount of benefits
he could receive as a result of a workplace injury. When the employer refused, Mr.
Stevens responded by threatening that he would make a complaint with the Ministry of
Labour and have his employer investigated for human rights violations. He further
threatened that his employer “would spend more money defending allegations than it
would cost [his employer] simply to change [his] pay records.”15 When his employer told
him to leave, Mr. Stevens slammed the door on his way out.
The HRTO held that, although Mr. Stevens had said he would file a human rights
claim, this was not the reason his employment had been terminated. His misconduct
during the argument could be distinguished from his protected behaviour. The relevant
unprotected conduct included slamming the door, yelling, and threatening to cost his
employer money. The Vice-Chair stated:
I find that the applicant went far beyond merely stating his intention to pursue appropriate legal avenues, including the filing of a human rights complaint . . . [T]he applicant's conduct in this regard provided a legitimate, non-discriminatory reason for the termination of his employment and . . . there was no intention to reprise against the applicant for threatening to file a human rights complaint.16
In the circumstances, the HRTO dismissed Mr. Stevens’ application.
In Noble, the HRTO clarified the difference between acts of reprisal and
disciplinary measures taken according to established policy. In that case, the
complainant, David Noble, brought a claim under s. 8 of the Code alleging that York
University had committed a series of reprisals after he challenged its policy of not
scheduling classes on Jewish high holidays. He claimed this policy “constituted
discrimination in employment and services on the basis of creed.”17 Much of the
complainant’s conduct in the course of challenging the policy violated York University 15 Stevens, supra note13 at para. 20. 16 Ibid. at para. 40. 17 Noble, supra note 10 at para. 6.
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policy. This behaviour included holding classes on holidays, pamphletting the campus
regarding his belief that the University was being run by Jewish organizations, requiring
students to divulge their religion, and encouraging students to protest in areas in which
University policy prohibited protest gatherings. In response to these policy violations,
the University wrote to the complainant asking him to consider the ethical implications of
his actions. It also issued press releases disassociating the University from his views
and wrote various internal emails discussing possible further disciplinary measures.
In coming to its decision, the HRTO noted that Professor Noble had submitted
various emails which he asserted as proof that the University was upset with his
behaviour and had considered disciplining him in response to his objection to the policy.
The HRTO held, however, that while this evidence “may assist in establishing intent,”
the emails were not, on their own, a reprisal.18 The emails merely established that the
University considered taking a reprisal, and not that it did, in fact, do so. The
University’s continued implementation of the alleged discriminatory policy also did not
constitute a reprisal. The HRTO held:
where a complainant is seeking to change a policy, a respondent's insistence on its policy, including in some cases discipline or threat of discipline, does not necessarily constitute a reprisal.19
As the University’s actions did not constitute reprisal, Professor Noble’s claim
was dismissed.
Taken together, these decisions confirm that in certain cases it may be possible
to discipline an employee for insubordination even if the employee’s insubordinate
behaviour is related to an alleged claim under the Code. In short, claiming a right under
the Code does not give an employee unfettered discretion to ignore an employer’s
workplace policies.
18 Ibid. at para. 39. 19 Ibid. at para. 41.
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(ii) Reprisals Where the Original Claim Was Unsubstantiated: Chan v. Tai Pan Vacations and Bertrand v. Primary Response Inc.
In Chan v. Tai Pan Vacations (“Chan”)20 and Bertrand v. Primary Response Inc.
(“Bertrand”)21, the HRTO found that the respective employers had infringed s. 8 even
though the employees’ original assertions of their rights under the Code had been
unfounded. In Chan, Ms. Chan claimed that her employer, Tai Pan Vacations (“Tai
Pan”), had reprised against her when it terminated her employment after she had filed a
complaint with the Ontario Human Rights Commission. She also claimed her
termination was an act of discrimination based on gender; specifically, she claimed her
dismissal was related to her stated interest in becoming pregnant.
The HRTO found that Ms. Chan’s dismissal was not motivated by her interest in
becoming pregnant. Despite this conclusion, it found that her termination constituted a
reprisal. Tai Pan had submitted as evidence a letter indicating that it had terminated
Ms. Chan’s employment because of the breakdown in their relationship after she made
her original human rights claim. The HRTO held that the termination of her employment
was clearly causally connected to the fact she had exercised her rights under the Code.
It awarded Ms. Chan $15,000.00 in damages for discrimination, humiliation and loss of
dignity, and $42,466.79 in compensation for lost wages from the date of her termination
until she found full-time work.
In Bertrand, the HRTO clarified that the protection of s. 8 extends to an employee
as long as the employee has a genuinely held belief that his or her Code rights have
been violated. Mr. Bertrand worked as a security guard for Primary Response Inc. from
September 1, 2007 until October 7, 2008 when his employment was terminated for
calling his employer a racist. He filed an application with the HRTO alleging that his
dismissal constituted discrimination on the basis of race, colour, ethnic origin and place
of origin. He did not allege reprisal.
20 [2009] O.H.R.T.D. No. 269. 21 2010 HRTO 186 [Bertrand].
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The HRTO found that there was no evidence to support the claim that Mr.
Bertrand’s race, colour, ethnic origin or place of origin played a role in his employer’s
disciplinary measures. Rather, it found that Mr. Bertrand had been insubordinate to his
supervisor and that Mr. Bertrand’s testimony regarding alleged ethnic slurs had not
been credible. Nevertheless, the HRTO found that his dismissal constituted a reprisal
under s. 8. of the Code. The employer had testified that Mr. Bertrand was fired because
he would not stop calling the human resource manager a racist. Though he had not
brought a claim of reprisal, the HRTO held that, by telling his employer he believed that
he was being disciplined on the basis of his skin colour, Mr. Bertrand had claimed his
rights under the Code. The HRTO noted:
An applicant is protected regardless of whether the right s/he claims or enforces is ultimately substantiated. However, it is equally true that an applicant cannot maliciously make a claim that s/he knows not to be true in order to gain some advantage.22
In this case, Mr. Bertrand sincerely believed his discipline was racially motivated.
While this belief may not have been objectively reasonable, the HRTO held that it was
reasonable when considered in the specific context. The relevant contextual factors
included the employer’s mistreatment of Mr. Bertrand in the past, the fact that his father
had recently died, and the fact that as “an immigrant the applicant would undoubtedly
have experienced discriminatory treatment during his time in Canada.”23 Given these
factors, the HRTO found that
[his employer] should have adopted a more appropriate process for ascertaining the basis of the applicant's claim rather than demanding "proof" on the spot and then summarily terminating the applicant's employment for being unable to articulate the basis for his belief.24
The HRTO declined to accept Mr. Bertrand’s claim for $15,000.00 in
compensation for injury to his dignity, feelings and self-respect. It explained that much
22 Bertrand, supra note 21 at para. 59. 23 Ibid. at para. 64. 24 Ibid. at para. 66.
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of this injury related to his belief that his termination had been racially motivated. Since
this belief was mistakenly held, it could not be compensated. Instead, the HRTO
awarded him $8,000.00 to reflect the distress he felt at losing his job.
The Chan and Bertrand cases affirm that an employer can be found to have
committed an act of reprisal contrary to s. 8 of the Code notwithstanding the fact that
there was no underlying Code violation relating to discrimination. Accordingly, the
Code’s reprisal provision can independently protect the ability of complainants to pursue
their rights under the Code without fear of reprisal.
(iii) Reprisal Remedies: Kohli v. International Clothiers
In the recent case of Kohli v. International Clothiers,25 the HRTO outlined its
approach for determining the appropriate quantum of damages in relation to losses
resulting from injury to dignity, feelings and self-respect under s. 45.2(1) of the Code. In
this case, Ms. Kohli complained to the District Manager of International Clothiers that
she had been twice passed over for a promotion to Assistant Manager because her
store manager believed that the position was not suitable for women. After Ms. Kohli
made this complaint, the store manager committed a series of reprisals: he cut her
hours by almost half; required her to work Sundays (even though she had previously
had this day off to spend with her husband); and made it clear to the staff that she was
being punished for misconduct. Ms. Kohli filed a complaint under the Code that her
employer had discriminated against her on the basis of sex and had reprised against
her under s. 8. She claimed that she had suffered depression as a result of the
reprisals, and submitted medical evidence to support this claim.
The HRTO found in favour of Ms. Kohli with respect to both claims and awarded
her $12,000.00 in damages for injury to her feelings, dignity and self-respect and
$23,586.59 in compensation for lost wages resulting from both her reduced hours and
her loss of the promotion. Though these damages also reflected the loss Ms. Kohli
25 2012 HRTO 153 [Kohli].
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sustained as a result of her employer’s discriminatory conduct, the HRTO found that
most of Ms. Kohli’s injury to feelings, dignity and self-respect stemmed from her
employer’s acts of reprisal. The HRTO explained that in determining the appropriate
quantum of damages under s. 45.2(1), the HRTO should consider: (i) the objective
seriousness of the conduct, and (ii) the effect on the particular applicant who
experienced the discrimination. When considering the objective seriousness, the HRTO
will examine the context of the conduct. It explained that “the more prolonged, hurtful,
and serious harassing comments are, the greater injury to dignity, feelings and self-
respect.”26 When determining the effect of the conduct on the particular applicant, the
HRTO may consider whether the complainant experienced humiliation, hurt feelings,
loss of self-respect, loss of dignity, loss of self-esteem, loss of confidence, victimization
and vulnerability. Applying these factors to Ms. Kohli, the HRTO found the following:
The applicant was a key holder and in effect an assistant manager for much of 2009. As it turns out the only reason that this status was not confirmed was that she was a woman and the respondent Bajwa chose to tell her so in October 2009. When she challenged their decision to deny her a promotion on two occasions the respondents engaged in a sustained effort to drive her out of the workplace. The respondents’ treatment of her was more than enough, in my view, to justify her leaving the workplace, but I accept her evidence that because of her and her family’s economic circumstances the applicant was left with little choice but to stay and endure the humiliation of remaining in their employ notwithstanding the evident diminution in her status and reduced income. Although the medical evidence offered was limited I also accept the applicant’s evidence that the stress associated with working under the conditions imposed on her by the respondent made her ill.27
The HRTO also made orders to ensure that the employer complied with the Code
in the future. In particular, it required the employer to complete the Ontario Human
Rights Commission’s online training module within 60 days of the Order and to “retain
an expert in human rights law to develop a comprehensive anti-discrimination policy
26 Arunachalam v. Best Buy Canada, 2010 HTRO 1880 at paras. 52-54, cited in Kohli, supra note 25 at para. 17. 27 Kohli, ibid. at para. 18.
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which will include amongst other features an internal complaints mechanism” within 90
days.28 The HRTO felt this was necessary because the respondents had “little
understanding of their obligations under the Code.”29
This decision demonstrates that an employer who is found to have committed a
reprisal is vulnerable to a variety of financial and non-financial remedies. Even where
the employee has not been subject to official disciplinary measures such as warnings,
suspension or termination, damages for intangible loss can be significant if the
employer’s unofficial ‘punishment’ has involved intimidation, embarrassment and
harassing conduct.
(iv) Conclusion
Employers should recognize that they cannot, in any way, discipline employees
for asserting their rights under the Code. As was evidenced in Bertrand, an employee
can be under the protection of s. 8 even if he or she does not specifically mention the
Code at the time of the alleged reprisal and even if the underlying complaint is not
objectively reasonable. Employers should be careful when navigating the line between
bona fide disciplinary measures and acts of reprisal. It may be possible in some cases
to discipline an employee who brings forward a claim in an insubordinate manner, but
this discipline must in no way be motivated by the claim itself. Findings of reprisal can
result in the employer having to pay significant damages for intangible and financial
losses.
III. THE EMPLOYMENT STANDARDS ACT, 2000: REPRISALS UNDER SECTION 74(1)
Section 74(1) of the ESA contains a general prohibition against reprisals. It
reads:
28 Ibid. at para. 27. 29 Ibid. at para. 25.
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s. 74(1):No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,
(a) because the employee,
(i) asks the employer to comply with this Act and the regulations,
(ii) makes inquiries about his or her rights under this Act,
(iii) files a complaint with the Ministry under this Act,
(iv) exercises or attempts to exercise a right under this Act,
(v) gives information to an employment standards officer,
(vi) testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this Act,
(vii) participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business Holidays Act,
(viii) is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV; or
(b) because the employer is or may be required, because of a court order or garnishment, to pay to a third party an amount owing by the employer to the employee.30
Section 74(2) further provides that the burden of proof that an employer did not
contravene a provision set out under s. 74(1) lies upon the employer.
The Employment Standards Act 2000: Policy and Interpretation Manual (the
“Policy Manual”),31 which provides guidance on how the Ministry of Labour may interpret
ESA requirements, outlines four criteria that must be satisfied in order to find a violation
of s. 74(1). Briefly summarized, these criteria are as follows:
1. The person alleged to have committed a reprisal must be the
complainant’s employer or a person acting on behalf of the employer. 30 ESA, supra note 2. 31 Ontario (Employment Practices Branch), Employment Standards Act 2000: Policy and Interpretation Manual, looseleaf (Toronto: Carswell Thomson Reuters) at 22.1 [ESA Policy Manual].
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Generally, if the claim is against the complainant’s past or present
employer, then the first criteria is met. Unlike reprisals under the Code, s.
74(1) generally does not provide protection to job applicants.32 The only
circumstances in which a job applicant can bring a claim under s. 74(1) is
where an applicant has asserted his or her right not to take, or be asked to
take, a lie detector test under s. 68.33
2. The employer, or person acting on the employer’s behalf, must have
intimidated, dismissed or otherwise penalized the employee, or threatened
to do so. Conduct constituting reprisal under this criterion covers
behaviour ranging from traditional disciplinary measures, such as
suspension or dismissal, to less obvious behaviour such as withholding
rewards or possible opportunities.
3. The employee must have engaged in a protected activity listed in s. 74(1).
As with the second criterion, the Policy Manual’s approach to this criterion
is very broad. It provides that “any activity in which the employee’s
objective is to get the employer to comply with the Act or regulations
should be seen as being protected activities.”34 Despite this broad
approach, the reprisal provision does not protect employees who are
reprised against for asserting a right under another statute or under their
contract of employment.35
4. The employer must have taken the impugned measures because the
employee engaged in the protected activity. 36 In other words, there must
be a causal connection between the employee’s protected activity and the
impugned conduct. The employer must have known, or ought to have
32 ESA, supra note 2. 33 ESA Policy Manual, supra note 31 at 22-2. 34 Ibid. at 22-33. 35 Ibid. at 22-35. 36 Ibid. at 22-41.
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known, that its conduct would negatively affect the employee.
Furthermore, the employer’s conduct must be motivated, at least in part,
by the employee having engaged in the protected activity.
If an employee meets the above four criteria, a reprisal has occurred. An
employer who is found to have infringed s. 74(1) may be subject to a compliance order,
a notice of contravention, or an order for reinstatement and/or compensation.
According to the Policy Manual, an order for reinstatement is the presumptive remedy
where the employee has been dismissed37 and is appropriate if “there is a reasonable
chance that the employee can be successfully reintegrated into the workplace.”38 Under
a reinstatement order, an employer must put the employee back in his or her most
recently held position. If that position no longer exists, then the employee must be
placed in a comparable position.
In addition to reinstatement, an employer can also be ordered to pay
compensation according to some or all of the following heads of damages:
• direct earnings loss;
• pre-reinstatement compensation;
• time required to find a new job and termination notice or pay (whichever is
greater);
• expenses incurred in seeking new employment;
• loss of the employee’s reasonable expectation of continued employment
with the former employer;
• emotional pain and suffering;
37 Ibid. at 22-16; 22-17. 38 Ibid. at 22-17.
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• severance pay;
• benefit plan entitlements; and
• reasonable foreseeable damages.
Damages awarded for the employee’s loss of the reasonable expectation of
continued employment and for emotional pain and suffering are generally the most
difficult to quantify. Under both heads of damages, the OLRB has considered factors
such as length of service, nature of employment, loss of the possibility of advancement,
and the general security of jobs in the particular industry.39 With respect to damages for
emotional pain and suffering, in some cases, even an employee’s oral evidence of
suffering may support an award of damages; however, medical evidence may be
required to support larger awards.
(i) Threshold for Engaging in a Protected Activity: Ontario Line Clearing & Tree Services Ltd. and Holcim (Canada) Inc.
In two recent decisions, the OLRB considered what constituted engaging in a
protected activity under the ESA. In Holcim (Canada) Inc.40 the OLRB held that an
employee can be found to have been asserting his or her ESA rights even though the
employee may not have been aware that he or she was doing so. In that case, the
applicant, Ms. Shi, brought a claim of reprisal under s. 74(1) after her employer
terminated her employment as a Senior Tax Analyst.
Underlying the termination was a scheduling dispute. On December 1, 2009, Ms.
Shi’s manager sent an email to staff explaining that they would be expected to work
weekends and evenings with no time off for a two-week period at the beginning of
January 2010. Ms. Shi replied that she could not guarantee she would be available to
work the extended hours and that she did not believe such hours were necessary to
accomplish the work. Her manager insisted that there would be no negotiations on the
39 Ibid. at 22-10; 22-11. 40 [2011] O.E.S.A.D. No. 1128.
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extended work schedule. On January 15, 2010, Ms. Shi sent an email to her manager
stating the following: “Just want to check with you whether you are going to need me
here after consol is done. Please let me know.”41 Shortly thereafter, her manager called
her to a meeting with the director of human resources at which her employment was
terminated.
Ms. Shi claimed that her email of January 15, 2010 was an assertion of her right
not to have to work in excess of 48 hours in a work week without her agreement. While
the OLRB held that “[t]here is absolutely nothing in the email to suggest any assertion of
any right or legal protection,” it found that it must examine the evidence as a whole in
order to determine if Ms. Shi could be said to have asserted her rights under the ESA.42
The OLRB found that the manager’s proposed schedule exceeded the maximum hours
permitted under the ESA. As a result, Ms. Shi’s emails in which she resisted accepting
those hours amounted to “effectively asking the company to comply with the Act or
attempting to exercise a right under the Act, whether or not she was precisely aware of
her statutory rights.”43 It concluded that “her termination may have been motivated, at
least in part, by her unwillingness to accept [her manager’s] demanding work schedule
for the completion of the year-end work.”44 This decision supports the proposition that,
where an employer’s request is in violation of the ESA, an employee’s resistance to
such request may be seen as engaging in a protected activity under s. 74(1).
While the OLRB’s decision in Holcim (Canada) Inc. demonstrates the breadth of
s.74(1)’s protection, its decision in Ontario Line Clearing & Tree Services Ltd. (c.o.b.
Ontario Line Clearing & Tree Service)45 (“Ontario Line Clearing”), demonstrates its
limits. In Ontario Line Clearing, the respondent, Mr. Bognar was dismissed from his
position as ‘tree climber’ after he acted as the spokesperson for a work stoppage. Over
the course of his year of employment with the company, Mr. Bognar had raised issues
41 Ibid. at para. 21. 42 Ibid. at paras. 28-29. 43 Ibid. at para. 35. 44 Ibid. at para. 30. 45 [2011] O.E.S.A.D. No. 632.
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with his supervisor, Matthew Wharram, around overtime pay and his hourly pay under
the ESA. While Matthew Wharram agreed to increase Mr. Bognar’s hourly rate, he took
no action with respect to Mr. Bognar’s claim for overtime. On January 25, 2010, Mr.
Bognar and his fellow employees commenced a one-hour work stoppage over the issue
of compensation. Mr. Bognar spoke to the on-duty foreman on behalf of the employees
and relayed their concerns regarding their hourly wages, meal allowance, bonus pay
and overtime pay. Subsequently, William Wharram, the president of the company,
decided to terminate Mr Bognar’s employment because he was the spokesperson and
seemed to be “a trouble-maker”.46
In finding that there had been no reprisal under s. 74(1), the OLRB considered
two key factors. First, the person who decided to terminate Mr. Bognar’s employment
was not aware of his assertions of any statutory entitlement. Second, Mr. Bognar’s
participation in the work stoppage constituted willful misconduct. The OLRB found that
the president of the company could not have been motivated in any part by Mr.
Bognar’s past attempts to exercise his rights under the ESA because there was no
evidence suggesting he knew about them. All that William Wharram was aware of was
the fact that Mr. Bognar acted as a spokesperson for the employees during their work
stoppage and appeared to be “a trouble-maker”. Furthermore, in exercising his rights in
the form of a work stoppage, Mr. Bognar was guilty of willful misconduct and/or willful
neglect of duty which was not trivial and not condoned. The work stoppage therefore
constituted valid grounds for dismissal. As the OLRB explained,
there is no dispute that Mr. Bognar had wilfully withdrawn his service to the company in order to obtain what he believed he was entitled to in terms of wages. What he and the other employees ought to have done was continue to work and make claims under the Act, either directly to the company or by filing a claim with the Ministry of Labour. That might have afforded Mr. Bognar some protection in case of any reprisals by the company. Instead, he resorted to self-help, which exposed him to dismissal . . . [I]n engaging in the work stoppage and refusing to carry out his
46 Ibid. at para. 23.
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responsibilities, Mr. Bognar was guilty of wilful misconduct and/or wilful neglect of duty which was not trivial and not condoned.47
(ii) Reprisals with Respect to Leaves of Absence: Marineland of Canada Inc. and Moeller Electric Ltd.
The recent cases of Moeller Electric Ltd.48 and Marineland of Canada Inc.49 both
highlight the sensitivity of terminating the employment of an employee who is returning
from a leave of absence. Section 53(1) of the ESA provides for reinstatement of
employees after ESA-protected leaves:
s. 53(1): Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.50
Section 53(2) provides a narrow exception to this reinstatement requirement “if
the employment of the employee is ended solely for reasons unrelated to the leave.”
The following cases emphasize that the employee’s leave can play no part in a decision
made under the s. 53(2) exception.
In Moeller Electric Ltd. the OLRB held that the employer’s aggressive and
intimidating treatment of an employee who questioned the conditions of his return to
work at the end of his parental leave amounted to a reprisal under the ESA. The
Applicant, Mr. Ayed, claimed that he was “forced to quit” his position of
Assembler/Wireman as a result of being offered significantly reduced hours upon
returning from parental leave.51 Prior to his leave, Mr. Ayed consistently worked 40
hours a week, five days a week, as well as occasional overtime. Upon commencing
discussions around his return to work, he received an email from the Logistics
Operations Manager stating: “do not expect overtime because there is not overtime
offered, also be prepared to work 3 days a week, Monday, Wednesday and Fridays, 47 Ibid. at paras. 29 and 31. 48 2012 CanLII 13461 (ON LRB) [Moeller]. 49 2012 CanLII 4307 (ON LRB) [Marineland]. 50 ESA, supra note 2. 51 Moeller, supra note 48 at para. 4.
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due to the slowdown in bookings” [emphasis in original].52 The manager copied this
email to the Director of Operations.
Mr. Ayed felt these reduced hours would not be enough to support his family and
offered to resign if the company would send him a record of employment acknowledging
there was no job for him with the company. In response, the Director of Operations told
Mr. Ayed that he was outraged at Mr. Ayed’s request because it would require the
company to commit fraud. He claimed that the reduction of Mr. Ayed’s hours was only a
possibility, not a certainty, and that Mr. Ayed’s job was still very much available. The
company decided to take Mr. Ayed’s request as an unconditional resignation and issued
a record of employment holding Mr. Ayed fully responsible for the termination of the
employment relationship.
The OLRB held that the company had reprised against Mr. Ayed. While the
proposed reduced hours were based on valid business concerns and were therefore not
a violation of the leave provisions, the company’s treatment of Mr. Ayed in negotiating
the suitability of the new position constituted a reprisal. It found that this treatment went
“beyond what was needed to respond to business conditions and sought to take
advantage of Ayed’s weakened bargaining position characteristic of those returning
from leave.”53 Further, it concluded that Mr. Ayed had not resigned and that his
employment was ended by the company. Although the OLRB acknowledged that there
were viable business reasons to eliminate Mr. Ayed’s position, it did not believe they
were the sole reasons for which Mr. Ayed’s employment was terminated. The OLRB
held that the company’s aggressive tone in its emails to Mr. Ayed, the speed with which
it accepted his ‘offer of resignation,’ and the fact that the Director of Operations was
involved in a routine return to work discussion “remove[d] any doubt that the motivation
was to get rid of his employment under the former conditions summarily and prior to his
return from leave.”54 According to the OLRB, the problem with the employer’s conduct
52 Ibid. at para. 26. 53 Ibid. at para. 52. 54 Ibid. at para. 54.
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was not that it offered Mr. Ayed reduced hours, but that it did so in the hope that Mr.
Ayed would resign prior to returning from leave. The company’s actions therefore
constituted a reprisal.
Marineland of Canada Inc. involved an appeal from an Employment Standard
Officer’s (“ESO”) determination that Marineland had violated ss. 53 and 74 of the ESA
when it failed to reinstate one of its employees, Ms. Embleton, into her previously held
position upon her return from pregnancy leave and subsequently terminated her
employment. Prior to her pregnancy leave, Ms. Embleton had held the position of
Purchasing Assistant, providing clerical and administrative support to the Purchasing
Manager. When she returned from leave, however, this position had been eliminated
as a result of a restructuring triggered by the Purchasing Manager’s intent to retire. The
restructuring resulted in two new positions: Purchasing Associate and Administrative
Assistant to the Purchasing and Accounting Departments. Ms. Embleton was placed in
the Administrative Assistant position. She challenged this placement with the Director
of Administration, arguing that the Purchasing Associate position was closer to her
previously held position and that there was not enough work for her to do in the
Administrative Assistant position. Marineland’s response to both inquiries was
measured and appropriate. It clearly outlined its view that the Purchasing Associate
position required negotiating skills beyond Ms. Embleton’s skill set and explained to her
that her reduced workload was due to newly developed computer efficiencies and a
downturn in Marineland’s business. Subsequent to her complaint, the Director of
Administration assessed Ms. Embleton’s minimal workload and determined that if Ms.
Embleton was not busy in the summer months, Marineland’s busiest time of year, then
she would have very little to do for the rest of the year. On August 20, 2011, Marineland
terminated Ms. Embleton’s employment. It cited the downturn in work resulting from
decreased business and the restructuring process as the reasons for her dismissal.
The OLRB held that Marineland did not violate the ESA when it eliminated Ms.
Embleton’s previous position during legitimate business reorganization and placed her
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in the new Administrative Assistant position upon her return to work. Although she had
fewer responsibilities and a reduced workload in her new position, both positions were
clerical and subject to the same compensation and terms and conditions of
employment. The new position was therefore a comparable position under s. 53 of the
ESA. Despite this conclusion, the OLRB held Ms. Embleton’s termination was a
reprisal. It based this holding on Marineland’s failure to provide the OLRB with
evidence regarding the context of its decision to end Ms. Embleton’s employment. The
OLRB explained:
I note that the termination followed on August 20, before the end of the summer season, which is traditionally Marineland’s busiest period. No evidence was led as to why Ms. Stewart selected August 20, 2010 . . . to dismiss Ms. Embleton. Also, while I am prepared to accept that there were layoffs of other employees, this evidence was very vague and brief. What categories of staff were laid off? When did the layoffs occur? Did they result ultimately in termination from employment, or were they temporary in nature? The Board was provided no answers to those inquiries, and therefore it is impossible to assess Ms. Embleton’s dismissal contextually, having regard to other workplace developments.55
The OLRB concluded that Ms. Embleton’s inquiries into her previous position
were at least an incidental factor in Marineland’s decision to terminate her employment.
The OLRB also emphasized that, even though Ms. Embleton was incorrect in her
belief that her placement in the new position violated the ESA, this mistaken belief did
not remove her from the protection of the reprisal prohibition. It held the following:
[T]he fact that Ms. Embleton was not ultimately correct that her pre-pregnancy leave position still existed or that the Administrative Assistant position was not comparable, is irrelevant. Inquiries by an employee of his or her rights, even an attempt to exercise a statutory right, are protected activities under section 74.56
These decisions demonstrate that while employers may be entitled in certain
cases to dismiss an employee who is returning from leave, or significantly reduce his or
55 Marineland, supra note 49 at para. 43. 56 Ibid. at para. 44.
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her hours, the decision to do so must be entirely based on business concerns or other
factors wholly unconnected to the employee’s leave. Contextual evidence will generally
be required to prove that the employee’s leave in no way affected the employer’s
decision. Furthermore, intimidating conduct intended to discourage an employee from
returning to his or her previously held position will likely be found to constitute a reprisal
under the ESA.
(iii) Remedies: P & L Corporation Ltd. and Dana Hospitality Inc.
In P & L Corporation Ltd.,57 the OLRB considered how to approach the award of
damages in reprisal cases where reinstatement is not appropriate. In this case, the
employee, Ms. Schiller, worked for P & L Corporation (“PLC”) selling newspaper
subscriptions door-to-door. She was paid on a commission basis, sometimes resulting
in her making less than minimum wage. Ms. Schiller asked PLC to pay her minimum
wage and indicated she would go to the Ministry of Labour if it refused to do so. She
was told in response that her employment was terminated.
The OLRB held that PLC’s conduct was a clear act of reprisal under the ESA. It
noted that, while the presumptive remedy in reprisal cases is “to return the employee to
work,” such a remedy would have been inappropriate in this case because the
employment relationship between PLC and Ms. Schiller had been beyond repair.58 An
order of compensation was therefore the appropriate remedy. The OLRB awarded her
damages for ‘direct wage loss’ and ‘loss of reasonable expectation of employment.’ To
determine the quantum of direct wage loss, the OLRB explained that it should multiply
an employee’s wage by the number of weeks it took her to find a new job. This
calculation, however, is qualified by the employee’s duty to mitigate by actively seeking
new employment. In light of this duty, the seven months it took Ms. Schiller to find new
employment was considered unreasonably long. The OLRB therefore awarded two
months of direct wage loss. The OLRB then added an additional month’s wages to
57 [2012] O.E.S.A.D. No. 307. 58 Ibid. at para. 26.
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compensate Ms. Schiller for loss of the reasonable expectation of employment. In total,
it ordered PLC to pay Ms. Schiller $3,096.00 in damages.
In Dana Hospitality Inc.,59 the applicant, Ms. Goyal, appealed the amount an
ESO had awarded her in compensation for emotional pain and suffering. The ESO had
found that Dana Hospitality Inc. had terminated Ms. Goyal’s employment in its Tim
Horton’s franchise as a reprisal for her demands for public holiday pay. The ESO
awarded her $8,453.66 in damages, including compensation for unpaid wages
($415.25), direct earnings lost for her period of unemployment ($7,520.00), vacation pay
($317.41) and loss of job and emotional suffering ($200.00). Ms. Goyal argued that the
$200.00 award was not sufficient to compensate her for her emotional pain and
suffering. She did not give a preferred amount, but did signify that she felt $1,500.00
would also be insufficient. Ms. Goyal claimed that she suffered from self-diagnosed
depression for a period of ten days following her termination, but did not provide
medical evidence in support of this claim.
The OLRB determined that Ms. Goyal’s award had been more than sufficient.
While it upheld the ESO’s decision to award Ms. Goyal $200.00 under this category of
compensation, it noted that this award may have been overly generous given the fact
that Ms. Goyal’s claim was based entirely on “generalized upset and anxiety” with no
medical evidence. The OLRB held that where there is no medical evidence, there must
be contextual factors to support a presumption that termination would lead to “significant
emotional suffering beyond that occasioned by any job loss.”60 These factors included:
• the length of employment;
• whether the termination was based on discriminatory reasons that impact
the employee’s ability to find future work;
59 [2011] O.E.S.A.D. No. 4. 60 Ibid. at para. 20.
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• whether there was a close relationship between the employee and
employer;
• whether the employer was the only employer in her community; and
• whether the employer obstructed the employee’s ability to obtain
employment or income replacement benefits.
The OLRB indicated that, even where such factors supported a presumption of
emotional suffering, damage awards based on a presumption have generally been
capped at $1,500.00.
(iv) Conclusion
The cases discussed above demonstrate that the OLRB and/or an ESO may
broadly interpret what constitutes a protected activity under the reprisal of the ESA.
That being said, the cases also suggest that an employer may be able to support a
bona fide dismissal or disciplinary measure where the employee’s attempt to engage in
a protected activity takes the form of willful misconduct and/or willful neglect of duty.
Similarly, an employer may be able to defend successfully against an allegation of
reprisal under the leave of absence provisions if the employer can demonstrate that its
action in question was based entirely on reasons unrelated to the leave. However,
employers will need to be prepared in such circumstances to provide the ESO or OLRB
with clear evidence supporting their position. Employers should also avoid any
intimidating or aggressive behaviour, as such behaviour can factor into the OLRB’s
assessment as to whether the employer committed a reprisal. Finally, employers
should be mindful that the presumptive remedy under the ESA reprisal provisions is
reinstatement, which may be paired with a compensation order. Damages for loss of a
reasonable expectation of continued employment and for emotional pain and suffering
are also available, although for allegations of emotional pain and suffering the OLRB will
generally require medical evidence to support the claim if the quantum being sought is
significant.
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IV. THE PUBLIC SERVANTS DISCLOSURE PROTECTION ACT: REPRISALS UNDER SECTION 19
On April 15, 2007, PSDPA came into force.61 The primary purpose of the
PSDPA is to establish mechanisms through which federal public servants can disclose
wrongdoing without fear of reprisal. In October and November 2011, the Public
Servants Disclosure Protection Tribunal (“Tribunal”) released its first reported decisions
under the PSDPA, thus providing additional context to the statute, and allowing us to
monitor how various principles have been applied by the Tribunal to date.
(i) Background
In 2003, following a review of irregularities reported in the Office of the Privacy
Commissioner, the Standing Committee on Government Operations and Estimates
released a parliamentary report which found then-existing administrative controls to be
inadequate in protecting whistleblowers.62 The report concluded that only a legislative
framework would provide adequate protection and mechanisms to enable the disclosure
of wrongdoing, while preventing abuses. The report therefore recommended that the
Government of Canada introduce legislation to facilitate the disclosure of wrongdoing
and to protect whistleblowers in the public sector.
As a result, the PSDPA was enacted, providing a legislative framework under
which federal public sector employees who make disclosures of wrongdoing are
protected from acts of reprisal by their employers. The mandate of the Tribunal is to
hear reprisal complaints referred by the Office of the Public Sector Integrity
Commissioner (the “Commissioner”) to determine whether a reprisal was taken, to
award remedies to complainants where appropriate, and to order disciplinary action (if
applicable) against persons who take reprisals.63
61 PSDPA, supra note 3. 62 Canada, House of Commons, Standing Committee on Government Operations and Estimate, Report 13: Study of the Disclosure of Wrongdoing, (November 2003). Chair: Reg Alcock. 63 “Mandate,” online: Public Servants Disclosure Protection Tribunal < http://www.psdpt-tpfd.gc.ca>.
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(ii) Reprisals Under the PSDPA
Section 19 of the PSDPA prohibits any person from “tak[ing] any reprisal against
a public servant or direct[ing] that one be taken against a public servant.” The PSDPA
defines a “reprisal” as
any of the following measures taken against a public servant because the public servant has made a protected disclosure or has, in good faith, cooperated in an investigation into a disclosure...:
(a) a disciplinary measure;
(b) the demotion of the public servant;
(c) the termination of employment of the public servant, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;
(d) any measure that adversely affects the employment or working conditions of the public servant; and
(e) a threat to take any of the measures referred to in any of paragraphs (a) to (d).64
In light of the above definition, to determine whether a reprisal has occurred, one
must first establish that the public servant has made a “protected disclosure.” The
PSDPA defines a “protected disclosure” as
a disclosure that is made in good faith and that is made by a public servant
(a) in accordance with this Act;
(b) in the course of a parliamentary proceeding;
(c) in the course of a procedure established under any other Act of Parliament; or
(d) when lawfully required to do so.65
64 PSDPA, supra note 3 at s. 1. 65 Ibid.
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Disclosures made “in accordance with this Act” include disclosures of “any
information that the public servant believes could show that a wrongdoing has been
committed or is about to be committed, or that could show that the public servant has
been asked to commit a wrongdoing.”66 Wrongdoings under the PSDPA are defined to
include:
(a) a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act, other than a contravention of section 19 of this Act [the reprisal provision];
(b) a misuse of public funds or a public asset;
(c) a gross mismanagement in the public sector;
(d) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant;
(e) a serious breach of a code of conduct established under section 5 or 6; and
(f) knowingly directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e).67
Protected disclosures can be made, depending on the circumstances of the
case, to the public servant’s supervisor or to a designated senior officer under s. 12, to
the Commissioner under s.13, to the Auditor General of Canada under s. 14, or to the
public under s.16.
(iii) Causation/Nexus Requirement
As stated above, a reprisal will be found to exist where prescribed measures are
taken against a public servant “because” the public servant has made a protected
disclosure. The definition therefore suggests that a nexus must be established between
the initial disclosure and any discipline, demotion, termination, etc., which follows.
66 Ibid. at s. 12. 67 Ibid. at s. 8.
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Unfortunately, the Tribunal jurisprudence to date has not laid out a legal test or analysis
of that causation/nexus requirement. The Tribunal has found, however, that the
definition of reprisal “refers to terms that are action oriented, such as the word
‘measures’”, and has also noted the definition “is worded in such a way that a multitude
of subtle and incremental issues can be examined.”68
We can anticipate that the Tribunal will eventually consider other reprisal
legislation in assessing the PSDPA’s causation requirement. For example, as
discussed above, the reprisal provision found at s. 74 of Ontario’s ESA, contains similar
causation language (e.g., it provides that no employer shall intimidate, dismiss or
otherwise penalize an employee because the employee engages in a protected
activity).69 In considering this provision, the Ontario Ministry of Labour’s policy provides
that the employer’s conduct cannot in any way be motivated by the fact that the
employee has engaged in a protected activity,70 thus suggesting that even the slightest
connection between the protected activity and the employer’s conduct under s. 74 will
give rise to a contravention of the ESA. As additional jurisprudence is developed by the
Tribunal under the PSDPA, we will be able to further examine whether it will adopt a
causation standard similar to that under the ESA, or whether it will embrace a different
standard to measure causation.
(iv) Remedies
If, at the conclusion of its investigation, the Commissioner believes there are
reasonable grounds on which to conclude a reprisal occurred, the Commissioner will
refer the complaint to the Tribunal for a hearing on the merits of the case.71 A finding of
reprisal by the Tribunal can result in an order granting various remedies to the
complainant. Section 21.7 of the PSDPA outlines the Tribunal’s broad powers with
respect to remedies as follows: 68 Charbel El-Helou v. Courts Administration Service and David Power and Éric Delage (19 October 2011), 2011-PT-02 at para. 79, online: PSDPT http://www.psdpt-tpfd.gc.ca. [El-Helou #2]. 69 ESA, supra note 2. 70 ESA Policy Manual, supra note 31 at 22-42. 71 PSDPA, supra note 3 at s. 20.4.
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To provide an appropriate remedy to the complainant, the Tribunal may, by order, require the employer or the appropriate chief executive, or any person acting on their behalf, to take all necessary measures to
(a) permit the complainant to return to his or her duties;
(b) reinstate the complainant or pay compensation to the complainant in lieu of reinstatement if, in the Tribunal’s opinion, the relationship of trust between the parties cannot be restored;
(c) pay to the complainant compensation in an amount not greater than the amount that, in the Tribunal’s opinion, is equivalent to the remuneration that would, but for the reprisal, have been paid to the complainant;
(d) rescind any measure or action, including any disciplinary action, and pay compensation to the complainant in an amount not greater than the amount that, in the Tribunal’s opinion, is equivalent to any financial or other penalty imposed on the complainant;
(e) pay to the complainant an amount equal to any expenses and any other financial losses incurred by the complainant as a direct result of the reprisal; or
(f) compensate the complainant, by an amount of not more than $10,000, for any pain and suffering that the complainant experienced as a result of the reprisal.
(v) Disciplinary Orders
Federal public sector employers should also take note that the Tribunal has
additional powers to order disciplinary action against the person(s) found to be
responsible for the reprisal. Section 21.8 of the PSDPA reads as follows:
The Tribunal may, by order, require the Governor in Council, the employer or the appropriate chief executive, or any person acting on their behalf, to take all necessary measures to take the disciplinary action, including termination of employment or revocation of appointment, specified by the Tribunal against any person named in the application who was determined by it to have taken the reprisal. [emphasis added]
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In making an order relating to discipline, the Tribunal is required to take into
account various factors that are ordinarily considered by employers when they discipline
their employees, including, but not limited to: (i) the gravity of the reprisal; (ii) the level of
responsibility inherent in the position that the person occupies; (iii) the person’s previous
employment record; (iv) whether the reprisal was an isolated incident; (v) the person’s
rehabilitative potential; and (vi) the deterrent effect of the disciplinary action.72 The
Tribunal must also take into account the extent to which the nature of the reprisal
discourages the disclosure of wrongdoing under the PSDPA, and the extent to which
inadequate disciplinary action in relation to the reprisal would have an adverse effect on
confidence in public institutions.73 In making disciplinary orders, the Tribunal therefore
does not only consider the effect of the employee’s misconduct on the complainant, but
also the public’s confidence in the integrity of public servants and public institutions
generally.
(vi) Tribunal Discretion
Three recent interlocutory decisions of the Tribunal, each in the case of Charbel
El-Helou v. Courts Administration Service, et al.,74 provide additional insight regarding
the Tribunal’s broad discretion in administering its proceedings under the PSDPA.
The Tribunal confirmed, in El-Helou #1, that there was “no dispute with the
general principle...that this Tribunal...is master of its proceedings and has broad
discretion as to how to administer its proceedings in a fair and impartial manner.”75 In
that context, the Tribunal also recognized that the Commissioner acts as a “screening
function” and that the Tribunal’s adjudicative function is triggered only by the reception
of the Commissioner’s application.76 In El-Helou #1, the complainant moved that the
72 Ibid. at s. 21.8(2). 73 Ibid. at s. 21.8(3). 74 Charbel El-Helou v. Courts Administration Service and David Power and Éric Delage (6 October 2011), 2011-PT-01, online: PSDPT http://www.psdpt-tpfd.gc.ca [El-Helou #1]; El-Helou #2, supra note 68; Charbel El-Helou v. Courts Administration Service and David Power and Éric Delage (25 November 2011), 2011-PT-03, online: PSDPT http://www.psdpt-tpfd.gc.ca [El-Helou #3]. 75 Ibid. at para. 85. 76 Ibid. at para. 93.
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Tribunal should consider all three of his reprisal allegations even though only one of the
three had been referred by the Commissioner to the Tribunal. The Tribunal held:
Parliament clearly intended that the Commissioner perform a screening function to determine whether an Application to the Tribunal is warranted. Nothing prevents the Commissioner from bringing an Application to the Tribunal that refers to all the allegations in the original complaint or only some of the allegations.77
In the circumstances, the Tribunal held that it had no jurisdiction to consider the
first two allegations of reprisal which had been dismissed, as they did not form part of
the Commissioner’s application to the Tribunal. The Tribunal’s jurisdiction was
therefore limited to the third allegation of reprisal. However, the Tribunal made clear
that it could still consider the evidence of the other two allegations to provide context for
its determination with respect to the allegation before it. In that regard, the Tribunal
found that “facts relating to the allegations that were dismissed might have contextual
relevance to the allegation that the Commissioner found warranted a referral of an
Application to the Tribunal.”78
In El-Helou #2, the Tribunal held that the PSDPA conferred on it the discretion to
add a party to the proceedings if it becomes apparent that such party may have taken
the alleged reprisal and may be directly affected by the Tribunal’s determination.
Importantly, however, the Tribunal was careful to clarify that, in situations where the
Commissioner requests that the Tribunal order both a remedy for the complainant and a
disciplinary measure for the respondent(s), “it is only those respondents named in the
Application who can be subject to a disciplinary measure ordered by this Tribunal.”79 In
such a situation, the parties to the proceeding would be the Commissioner, the person
against whom the disciplinary action could be taken, and the entity that would
implement a disciplinary order.
77 Ibid. 78 Ibid. at para. 97. 79 El-Helou #2, supra note 68 at para. 45.
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In El-Helou #3, one of the individual respondents moved that his name be
removed from the application because he had neither originally been named by the
complainant, nor had he been given notice that he could be named at the time he was
interviewed by the investigator. The Tribunal denied the motion, holding that the
PSDPA confers on the Commissioner the authority to add names to the application at
any time during its investigation. Although the Tribunal recognized Parliament’s
intention to ensure that notice be provided to potential respondents and that “[t]his
requirement of notice ought not to be considered as merely a procedural formality”, the
Tribunal found that it will not always be possible to give notice to an individual before he
or she is questioned by an investigator.80 It will often only be “through a thorough and
independent investigation that the individuals who may have committed acts of reprisal
may be more adequately discerned.”81
(vii) Conclusion
Federal public sector employers should recognize that disciplining, demoting,
terminating, or otherwise altering the working conditions or duties of employees who
have made a protected disclosure under the PSDPA is a sensitive matter. While this
does not mean that such employers are precluded from ever disciplining an employee
who has made a protected disclosure, the employer’s motivation for its actions can be
expected to be closely scrutinized by the Commissioner and/or the Tribunal, and, thus
employers are advised to proceed with caution in such circumstances. Employers are
also advised, at minimum, to develop and follow clear policies and procedures
governing discipline, and to document all employee misconduct on which the employer
intends to rely to justify discipline, so as to protect against claims of reprisal when taking
bona fide disciplinary measures.
The context of any such disciplinary action will also be important. Factors that
may be relevant to the Tribunal’s determination of an alleged reprisal action can include,
80 El-Helou #3, supra note 74 at para. 29. 81 Ibid. at para. 50.
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without limitation, the timing of the employer’s conduct in relation to when the employer
first became aware of the employee’s protected disclosure, whether the employer has
treated the employee differently from other similarly situated employees, whether there
are any compelling business reasons for the employer’s conduct, and the credibility of
witnesses. As the PSDPA and the Tribunal are still in their infancy; we can anticipate
that additional contextual factors and other guiding principles, will be articulated by the
Tribunal as the case law in this area develops.
DARYL.DOC