The Ontario Labour Relations Board (OLRB) has ruled that a hospital’s response to a workplace sexual assault committed by a doctor against a housekeeper did not comply with its obligations under the Occupational Health and Safety Act (OHSA), finding that the incident constituted “workplace violence” rather than “workplace harassment” under the Act.
The decision arose from an appeal filed by the Ontario Nurses’ Association (ONA) challenging the Ministry of Labour inspector’s determination that Halton Healthcare Services had appropriately handled the incident under its workplace harassment policies.
ONA argued that the hospital failed to recognize the assault as an act of workplace violence, which carries specific employer obligations under the OHSA.
Background
The case concerns a 2018 workplace sexual assault involving a physician employed by Halton Healthcare Services and a hospital employee. The Hospital Employee, a member of the Canadian Union of Public Employees (CUPE), reported that the Physician followed her into an isolated area of the hospital, forcibly hugged her, and squeezed her breast without consent.
The Physician was convicted of sexual assault under the Criminal Code in 2020, with the conviction upheld on appeal.
ONA maintained that the hospital’s failure to treat the incident as workplace violence under the OHSA left workers inadequately protected. The hospital and the Ministry of Labour’s Director took the position that the incident was best characterized as “workplace sexual harassment,” arguing that there was no risk of physical injury as required by the OHSA’s definition of workplace violence.
The Board’s findings
In its decision, the Board determined that the hospital had mischaracterized the incident and that the assault met the OHSA’s definition of workplace violence, which includes “the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker.”
The Board emphasized several key factors:
- The Physician exercised physical force by grabbing and squeezing the Hospital Employee’s breast without consent.
- The Hospital Employee was unable to disengage from the Physician’s hold, which heightened the risk of physical injury.
- The Physician’s conduct was predatory, as he pursued the Hospital Employee into an isolated area of the hospital before assaulting her.
- The power imbalance between the Physician, a senior medical professional, and the Hospital Employee, a housekeeper, created an inherently coercive situation that could have led to further physical harm.
Workplace violence versus workplace harassment
The Board rejected the hospital’s argument that the incident was best characterized as “workplace harassment.” While workplace harassment under the OHSA includes “vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome,” the Board found that this definition does not exclude the possibility that the same conduct may also constitute workplace violence.
The hospital had relied on Ministry of Labour guidelines stating that “workplace sexual harassment” can include “unnecessary physical contact, including inappropriate touching.” However, the Board found that the nature and severity of the Physician’s actions went beyond harassment and met the criteria for workplace violence under the Act.
Implications of the ruling
While the Board determined that this specific incident constituted workplace violence, it declined to issue a blanket declaration that all acts of sexual assault in the workplace must be classified as workplace violence under the OHSA. The Board stated that such a determination would require a case-by-case analysis of the specific circumstances.
The hospital had argued that its classification of the incident as harassment was consistent with its obligations under the OHSA and that it had complied with all requirements regardless of the final classification. However, the Board’s ruling establishes that an employer’s response to workplace sexual assault must align with the Act’s workplace violence provisions when the conduct meets the statutory criteria.
Following the ruling, the parties were given 60 days to determine whether any further issues remain to be resolved in the case.
For more information, see Ontario Nurses’ Association v A Director under the Occupational Health and Safety Act, 2025 CanLII 14562 (ON LRB).
