What is a Workplace Reprisal in Ontario?

In Ontario, there are a number of measures to ensure protection of workers’ rights. In the event that workers exercise their rights, there are statutory measures that prohibit employers from punishing workers. These measures aim to ensure that workers not only have rights but are able to freely exercise them.

Workers’ rights are granted under legislation such as the Employment Standards Act, 2000 (“ESA”), the Occupational Health and Safety Act (“OHSA”), and the Ontario Human Rights Code (“the Code”). If an employee exercises their rights under an act such as the ESA, the OHSA, or the Code, and their employer punishes them in response, this is considered a reprisal.

Each piece of legislation has context-specific information about reprisals. A reprisal only takes place if an employer punishes a worker for exercising their rights. A worker being punished, without any connection to an exercise of their rights under the ESA, OHSA, or the Code, is not considered a reprisal.

Protection Against Reprisals Under the ESA

The ESA establishes a minimum floor of rights for all employees in Ontario. In the ESA, prohibition against reprisal is contained in section 74(1). This section states that an employer shall not intimidate, terminate, penalize, or threaten to penalize an employee due to the employee:

• Asking the employer to comply with the ESA
• Asking about their rights under the ESA
• Filing a complaint under the ESA
• Exercising a right under the ESA
• Giving information to an employment standards officer
• Asking about another employee’s pay rate to determine whether the employer is complying with the Equal Pay for Equal Work provisions
• Disclosing their pay rate to help another employee determine whether the employer is complying with the Equal Pay for Equal Work provisions
• Participating in a proceeding under this Act
• Being eligible for or intending to take a leave of absence

When evaluating whether a reprisal took place, the burden is on the employer to prove that they did not violate section 74(1) of the ESA. If a termination is found to be a reprisal, then the employee may be entitled to reinstatement or compensation.

Protection Against Reprisals Under the OHSA

The OHSA establishes protections for workplace health and safety hazards to workers. In the OHSA, a prohibition against reprisals is found in section 50(1). This section states that no employer can dismiss, discipline, or suspend—or threaten to dismiss, discipline, or suspend—impose a penalty on, intimidate, or coerce a worker due to the worker:

• Acting in compliance with the OHSA
• Seeking the enforcement of the OHSA
• Giving evidence in a proceeding related to enforcement of the OHSA

Similar to how the onus is on employers under the ESA, the employer is also responsible under the OHSA for showing that they did not violate section 50(1).

The test for determining whether a reprisal took place under the OHSA consists of two parts, as outlined in Hogan v EC King Contracting a division of Miller Paving Limited, 2010 CanLII 8391:

“Firstly, the applicant must assert that he or she was discharged, disciplined, threatened with discharge or discipline, intimidated and/or coerced. Secondly, the applicant must allege that this discipline etc. was a direct result of acting in compliance with, or seeking the enforcement of, the Act or regulations or giving evidence in a proceeding in respect of the enforcement of the Act or regulations (or an inquest).”

Protection Against Reprisals Under the Code

The Code aims to promote equal rights and opportunities and prevent discrimination. In the Code, prohibition against reprisal is found in section 8. This section states that everyone has the right to claim and enforce their rights under the Code, to take part in proceedings under the Code, and to refuse to infringe on the rights of another person under the Code, without reprisal or threat of reprisal.