Reprisal Remedy by Statute

Written on behalf of Peter McSherry

Ontario has certain statutes (i.e. laws) which provide powerful relief to employees who have been terminated or otherwise adversely treated due to their compliance with the terms of statute. The term used to describe this is “reprisal”.

OHSA

One such example is the Occupational Health and Safety Act which creates reporting requirements of unsafe working conditions and physical and sexual abuse amongst other obligations. It applies to all employers in the province.

The framework of the statute not only prohibits such unfair conduct by an employer, but also creates a reverse “onus of proof” upon the employer should the employee chose to challenge such decision of the employer.

Normally when an employee brings a case against a company, he or she must prove the case to achieve a victory by showing evidence to convince the judge beyond a balance of probabilities.

However, due to the reverse onus,  when an employee, for example, asserts they have been terminated due to compliance with the statute[1], it is the employer who must prove that this allegation is untrue and that some other motivator caused the termination decision. This is a powerful distinction. There is a presumption made by the statute that the employee’s complaint is valid, one which must be then rebutted by the employer.

The hearing officer has the power to reinstate and order back pay from the date of termination to the date of the hearing. This is a remedy similar to that of the Human Rights Tribunal.

It is thus very different from the usual common law, or judge made law, claim for wrongful dismissal. In the latter case, the claim is capped by the judge’s assessment of  “reasonable notice”.

Not only do reprisal claims under the OHSA have a reverse onus,  but there is also no maximum on the expected severance in such cases, apart from the time period from the date of termination to the date of hearing. In addition, the claim cannot be reduced by an employment contract which may purport to limit severance entitlement on termination. This statutory reprisal claim, for these reasons, can be a very powerful legal remedy.

Similar protections are afforded to employees working in industries governed by other public interest statutes[2]. These include:

1. The Environmental Assessment Act;
2. The Environmental Protection Act;
3. The Fisheries Act (Canada);
4. The Nutrient Management Act, 2002;
5. The Ontario Water Resources Act;
6. The Pesticides Act;
7. The Safe Drinking Water Act, 2002; or
8. The Toxics Reduction Act, 2009,

Legal Advice is a Bedrock

If you have been terminated or otherwise adversely treated and you are working in an industry governed by these statutes, you may have such a statutory remedy of a reprisal complaint. It is a powerful remedy at your disposal in the proper context.

If you are an employee seeking legal advice in this situation, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation

[1] The precise wording is “because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.  R.S.O. 1990, c. O.1, s. 50 (1).”

[2] By Section 174 of the Environmental Protection Act