An employee who filed a reprisal complaint under the Occupational Health and Safety Act (OHSA) against her employer, Metro Distribution Inc., faces potential dismissal of her application due to undue delay and failure to establish a causal link between her workplace health and safety concerns and alleged reprisals.
The Ontario Labour Relations Board (OLRB) has given the employee, H.L., until April 9, 2025, to provide written submissions explaining why allegations dating back more than a year before her filing date should not be dismissed and to clarify how more recent events constitute reprisals under section 50 of the OHSA.
Understanding reprisal complaints
In its decision, the Board clarified that section 50 of the OHSA protects workers who raise workplace harassment or violence concerns from suffering negative consequences, but does not grant the OLRB jurisdiction to “police workplaces for harassment and violence” or “assess the adequacy of an employer’s investigation into, or final determination of, a complaint of workplace harassment.”
The Board emphasized previous case law establishing that “applications that allege only that an employer failed to provide a harassment free workplace or that simply take issue with the employer’s determination following a complaint are unlikely to succeed or be heard.”
According to the decision, section 50 covers specific employer actions such as dismissal, discipline, suspension, threats of these actions, or other penalties, intimidation or coercion that occur because a worker acted in compliance with or sought to enforce the OHSA.
Timeline shows alleged delays
The application, filed on July 22, 2024, detailed H.L.’s employment at two Metro distribution warehouses – one from February 2021 until mid-July 2023, and another beginning around July 16, 2023.
The OLRB noted that H.L.’s allegations regarding her first workplace and her transfer to the second location all occurred more than a year before her application filing date. The Board stated that “delay in excess of one year will not be tolerated unless there are significant mitigating circumstances” and is considered “presumptively prejudicial to the responding party.”
For events occurring after July 23, 2023, the Board indicated it could not identify facts that, if proven, would constitute unlawful reprisals under the OHSA.
Missing the necessary elements
The decision pointed out that H.L.’s application largely focused on specific allegations of harassment by coworkers rather than instances where she “raised concerns of workplace harassment with the employer and, as a result or partially as a result, was terminated, suspended, subjected to discipline, threatened with termination, suspension and/or discipline; penalized, coerced or intimidated.”
The Board cited previous decisions requiring applicants to establish two essential elements: first, that they were “discharged, disciplined, threatened with discharge or discipline, intimidated and/or coerced,” and second, that this action “was a direct result of acting in compliance with, or seeking the enforcement of, the Act or regulations.”
“The pleadings of the applicant must, on their face, set out a clear causal nexus between rights and procedures arising under this Act (or its regulations) and the negative consequences which the employee claims to have been subjected to,” the decision stated.
Specific incidents fail to establish link
The Board examined specific incidents described in H.L.’s application:
- A formal harassment complaint filed on October 26, 2023, but with no alleged reprisal linked to this filing
- A January 2024 report of an unsafe act by a coworker, again with no connected reprisal
- A suspension and termination in March 2024 that was subsequently reversed through union intervention, with no link established to OHSA rights
- A call to the Ministry of Labour on April 11, 2024, with no claim that the employer became aware of this or took retaliatory action
- A brief suspension on April 23, 2024, which the Board noted appeared to be related to recording a conversation with a supervisor, not because of any OHSA rights exercise
- A May 26, 2024, car accident in the company parking lot and alleged procedural failures when reporting it
- A complaint about a coworker’s conduct on May 27, 2024, which was dismissed by HR
- An assignment to a cold section of the warehouse on May 28, 2024, which H.L. claimed exacerbated a previous injury
Range of remedies sought
H.L. sought numerous remedies, including a “Court date” to address allegations of workplace violence and harassment, compensation for “three years of undue hardship/financial and emotional distress,” payment from May 31, 2024, until her return to work, disciplinary penalties against those who made “false accusations” against her, and educational courses for all Metro employees on mental health, harassment and disability discrimination.
The Board has given H.L. until April 9, 2025, to provide written submissions explaining the delay in filing and identifying specific acts of compliance with the OHSA that resulted in company sanctions.
The vice-chair declined Metro’s request to dismiss the application for lack of particulars, stating that “a lack of particulars can be remedied short of dismissing an application,” but noted the company could request specific particulars should the matter proceed to a consultation or hearing.
For more information, see Heather Larocque v Metro Distribution Inc., 2025 CanLII 34616 (ON LRB).
