A recent legal decision reveals deep gaps in existing laws intended to protect workers against all forms of workplace violence and harassment, including sexual assault.

An Ontario Labour Relations Board (OLRB) decision concluded that a sexual assault on a worker was in fact workplace violence not workplace harassment. The distinction is important. Ontario employers have greater legal obligations to address and prevent workplace violence, compared to workplace harassment.

Hard won legal protections that took effect in 2010 require Ontario employers, among other things, to develop and implement workplace violence and harassment policies and program(s). However, while workplace violence programs require elements aimed at prevention, workplace harassment programs are mostly limited to reporting and investigating after the fact.

WORKPLACE VIOLENCE AND HARASSMENT TRAINING. Discounted for the month of May.

Too little progress

Paul Sylvestre, a Canadian Union of Public Employees (CUPE) national health and safety representative, says the OLRB decision is a ‘wakeup call’. In the fifteen years since Ontario’s first workplace violence and harassment laws took effect, he feels little has changed for his members, “There is no clear evidence that the changes have helped to reduce or prevent incidents of workplace violence and harassment.”

Twenty years ago, nurse Lori Dupont was repeatedly harassed by her ex-partner before he stabbed her to death at the hospital where they both worked. “I thought we were past this,” says Sylvestre.

Statistics Canada data show a troubling rise in sexual misconduct. And in 2022, 31 per cent of all Workplace Safety and Insurance Board (WSIB) lost-time injury claims were due to workplace violence, an increase of 38 per cent from 2016.

Threats to nursing staff persist and increasingly include weapons, hammers and knives brought into hospitals especially where no screening protocols exist, reports Denise Werner, a health and safety specialist with Ontario Nurses’ Association. Werner adds, “I fear there is going to be another murder. It’s just a matter of time.”

A workplace sexual assault

These are the essential facts of the OLRB case:

• A physician sexually assaulted a housekeeper at the hospital where they worked.
• The hospital characterized the incident as harassment, not violence, and as such did not complete prevention measures, such as a risk assessment or advise workers of a person with a history of violent behaviour in the workplace.
• Treating the incident as harassment, the hospital was able to shield information about the incident from workers and their representatives under privacy and confidentiality provisions.
• The physician retained hospital privileges while the incident was under investigation.

The worker eventually reported the assault to the police. The physician was convicted of sexual assault under the Criminal Code. He lost his appeal before a higher court as well as his privileges to practice at the hospital.

Health and safety appeal

When recommendations from worker members of the hospital’s joint health and safety committee (JHSC) were rejected by the employer, they sought a resolve through the Ministry of Labour, Immigration, Training and Skills Development (MLITSD). A health and safety inspector declined to investigate to determine if the incident constituted workplace violence. No orders were issued.

Two of the unions representing workers at the hospital challenged that decision. ONA appealed to the OLRB and CUPE intervened on behalf of the assault survivor.

They argued the assault constituted an incident of workplace violence as defined by the Occupational Health & Safety Act (OHSA) and that all incidents of sexual assault under the Criminal Code should, by definition, be deemed incidents of workplace violence under the OHSA.

The decision

The following comprise key conclusions from the decision:

• The OLRB dismissed the Hospital and the MLITSD’s position that the incident was uniquely an incident of workplace harassment as defined in the OHSA.
• The adjudicator determined that the assault was an incident of workplace violence as defined by the OHSA – not because the incident resulted in physical injury, rather the exercise of force could have caused a physical injury.
• The OLRB declined to declare that all sexual assaults automatically constitute an incident of workplace violence.

The ruling noted, “The crux of the dispute in the present matter is whether the application of physical force exerted by the Physician could have caused physical injury to the Hospital Employee. There is no dispute that the Hospital Employee did not in fact suffer a physical injury as a result of the Incident. And while the Incident surely caused the Hospital Employee psychological and emotional harm and was an affront to her human dignity, the definition of “workplace violence” is only concerned with physical injuries, and it is not for the Board to sit in judgment or question the wisdom of the legislature’s decision to exclude psychological and emotional trauma from its ambit.”

Legal deficiencies

As such, the decision exposes significant deficiencies in Ontario health and safety law:

• OHSA fails to recognize hazards, including workplace violence, can cause psychological injury.
• No presumption in OHSA that sexual assault (as defined in the Criminal Code) is recognized as workplace violence.
• Unlike Federal health and safety law, the OSHA does not require workplaces to take steps to prevent harassment, as it does for violence. Under the OHSA, employer duties for workplace harassment focus on reporting and investigating rather than implementing a program to prevent incidents (S 32.0.6 and 32.0.7). This disparity could encourage employers (and even the Ministry) to continue to mischaracterize workplace violence as harassment.

Failure to identify and prevent workplace harassment is dangerous and potentially deadly, because it often escalates to workplace violence. A third of allowed WSIB claims for workplace violence are filed by workers in the health care sector, says ONA’s Werner. Many more go unreported due to work demands but there are other reasons too, she says, “Our members are not confident that employers will properly investigate, and when they do, often nothing happens. There are no deterrents. Our members also fear reprisals, and many choose instead to leave the workplace, if not the profession altogether.”

Strengthening workplace protections

Armed with the OLRB decision, worker members of the hospital’s JHSC are identifying gaps in policies and procedures and working to make them clearer, more comprehensive and legally compliant.

For Werner another fundamental task remains, “We must change the narrative that violence and harassment are just part of the job. This unacceptable mindset must be acknowledged by employers and the public alike,” she says, ”and employers’ legal duties must also be fully enforced.”

To this end, unions are also developing demands for legislative reform and collective bargaining. Sylvestre says employers’ existing legal obligations are minimal and vague at best. “The law offers little clarity and guidance for employers and JHSCs seeking to implement effective measures and procedures to prevent both violence and harassment,” says Sylvestre. More concerning, the current complaint-driven harassment process is largely reactive and fails to proactively protect those most vulnerable, including women, racialized, and 2SLGBTQI+ workers, especially if they are unaware of their rights, afraid to report abuse and fear reprisal, he adds.

Both Werner and Sylvestre say underfunded public services not only fail to meet growing health care needs but contribute to unsafe staffing levels, one factor that exposes workers to increased abuse and violence.

They also agree that prevention measures must include quality health and safety training. Werner reports that her members are often expected to complete health and safety e-learning at work along with full patient assignments, “This isn’t real training, and it isn’t effective learning,” she says. Sylvestre adds, “A dedicated training standard, regardless of the hazard, is the best way to ensure workers receive comprehensive and effective training.”

WHSC can help

Workers Health & Safety Centre’s (WHSC) Workplace Violence and Harassment training is designed to help workplaces meet and exceed legal requirements by gaining the knowledge and skill needed to develop written policies, conduct a risk assessment, develop a workplace violence and harassment program to address hazards and a plan to fully train workers on these.
 
Employers governed by federal health and safety laws and regulations have more robust requirements and must work jointly with worker representatives to meet many of these obligations. Our Federal Committees and Representatives program also helps prepare workplace health and safety committee members to meet these important duties. 

To support Mental Health Awareness month and help workplaces create healthier, safer work, WHSC is offering a full schedule of instructor-led, in-person and virtual classroom workplace mental health training courses in English and French at a discounted rate of $40 per course (regularly $75) for courses booked by May 31, including future training throughout the summer.

REGISTER FOR WORKPLACE VIOLENCE AND HARASSMENT TRAINING.

Check out our complete Training Catalogue and WHSC training options by region.
 
Need training in French? Review our extensive French catalogue. Or contact WHSC training services representative, Christopher Gervais at cgervais@whsc.on.ca or 613-407-2187.
 
Related Resources
Read the full OLRB decision: 2025 CanLII 14562 (ON LRB) | Ontario Nurses' Association v A Director under the Occupational Health and Safety Act | CanLII
CUPE Violence and Harassment Prevention Resources
Workplace Violence and Harassment: A Guide for ONA Members and ONA Workplace Violence Infographic
OHCOW Mental Injury Toolkit
 
WHSC Resources
WHSC Workplace Violence Resources
The mental health crisis is real – support workers through training!
Preventing workplace sexual harassment—study finds TRAINING WORKS
Harassment at work rising, marginalized groups suffering most
Workplace violence, harassment widespread but unaddressed, report
Fed gov’t expands employer duties to address violence and harassment

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