Two decisions of Ontario Provincial Courts this summer, highlight the increasing importance that the Courts, the Ministry of Labour, employers and employees are placing on the need to protect workers from incidents of workplace violence. On July 15, 2016, after an extensive trial, the Royal Ottawa Health Care Group was acquitted of three charges under the Occupational Health and Safety Act (“OHSA”) following the assault of three employees by a patient. Just over one month later, on August 17, Kinark Child and Family Services was fined $125,000 after pleading guilty to a charge resulting from an assault of two youth workers by a youth in care. These cases might be the beginning of an increased number prosecutions under the workplace violence provisions of the OHSA.
The OHSA imposes a general duty on employers to “take every precaution reasonable in the circumstance for the protection of a worker” and to “provide information, instruction and supervision to protect the health and safety of a worker.” This obligation is expressed in more detail in the Violence and Harassment sections of the OHSA, which set out a general code of minimum standards employers must meet. Designed to ensure that workers are protected from workplace violence, these standards include the following:
- A written policy with respect to workplace violence; and
- A program to implement the policy, which includes “measures and procedures for summoning immediate assistance when workplace violence occurs or is likely to occur.”
The rationale for these requirements was succinctly explained by Arbitrator Newman some years ago in an arbitration involving the City of Kingston. While upholding the termination of an employee who made a death threat against a co-worker, he stated:
“The theory is that workplace violence is usually foreshadowed. It is, in many cases, predictable. The amendments reflect the view that violence can be prevented if employers, supervisors, and workers, seriously heed signs of danger, communicate clearly, and act with clarity when risk is identified.”
While each employer is left to devise their own policies and program to suit their own unique circumstance, it is often difficult to assess, in advance, whether a policy or program is sufficient to discharge the statutory obligation. Further, any injury to a worker resulting from workplace violence will call into question the sufficiency of the measures taken by an employer up to that point.
The Royal Ottawa and Kinark Decisions
The Kinark decision serves as a reminder of the legal penalties that can be incurred if a policy and implementation program are found to be inadequate. In that case, a youth in care assaulted two workers, causing physical and psychological injuries. The employer, Kinark, pleaded guilty to charges of failing to provide information, instruction and supervision to protect a worker from workplace violence or the risk of violence from a resident. The court imposed a fine of $125,000, which amount increased to over $156,250 after the addition of a mandatory victim impact surcharge (25%).
While the court did not provide much detail as to the deficiencies in Kinark’s policies or procedures, the Royal Ottawa decision, which came after an extensive trial, does provide employers with some guidance as to what an acceptable implementation program would look like.
The first charge against the hospital related to an alleged failure to have measures and procedures for summoning immediate assistance when workplace violence occurred. The court accepted that the hospital had a written “Code White” policy, which included intervention techniques such as instructions on calling for assistance. Evidence showed that the unit in question had been provided with 20 telephones from which a Code White could be announced. In addition, phones had a “speed dial” setting for automatically initiating a Code White. One of the concerns raised by the Crown was that the charting room where the first assault occurred did not have a phone on which a Code White could be called. However, patients were not supposed to enter the charting room, and the room could be locked from the inside. The court found “perceived deficiencies” in the program did not establish the Crown’s case beyond a reasonable doubt and dismissed the charge.
The second and third charges were under the general provisions of the OHSA (“failing to provide ‘sufficient’ information and instruction to protect a worker from workplace violence” and “failing to take every precaution reasonable under the circumstance for the protection of a worker”). The court concluded the Crown had failed to prove either charge beyond a reasonable doubt. In particular, it noted that while many suggestions for improvement had been made with the benefit of hindsight, the hospital had not received any indication that its training or instructions were inadequate prior to the incident.
The Royal Ottawa decision is currently under appeal. It is possible that further guidance on what constitutes an acceptable program will be provided by the appellate court.
These decisions are likely to be the first of many along these lines. Future cases will likely also explore the elements required to establish the defence of due diligence, which did not need to be considered in the above cases in light of the way they were decided. Other decisions, such as the judgment of Arbitrator Newman in the City of Kingston matter (which was cited in the Royal Ottawa decision), may become relevant in assessing the scope of the obligation to exercise due diligence – in particular, whether such obligation requires employers to go so far as to remove potentially violent persons from the workplace (even if removal would mean the dismissal of an employee or the transfer of a patient to a more secure setting). This raises a number of complicating factors in the context of health care facilities where the transfer of potentially violent patients is not necessarily a simple task. We will explore some of these issues in greater depth in Part II of this Health Communiqué.
Employers should take the statements and results in each of the above decisions as a cautionary tale on the importance of having well though through policies to detect, prevent and minimize the incidence of workplace violence. A key factor is the foreseeability of a given harm. While the Justice of the Peace in the Ottawa decision was careful to distinguish what could have been foreseen from what was known only through hindsight, one must never ignore the lessons that can be learned from an adverse incident or a “near miss.” For example, Royal Ottawa was said to have implemented a number of improvements to its program after the incident. Such action is required of an employer striving to be duly diligent in discharging its legal obligations. Every workplace incident creates an opportunity to reassess and improve a system. Failure to do so could result in serious injury to a worker and, ultimately, legal consequences.
Miller Thomson’s lawyers have extensive experience assisting health industry clients on matters relating to occupational health and safety. We prepare workplace policies, Codes of Conduct, and other mechanisms for addressing conduct in the workplace, responding to incidents of workplace violence and harassment and managing risk; and represent clients with respect to OHSA and other regulatory prosecutions.