Tag Archives: workplace violence

No relief for victims of harassment – Ont CA

22 Jul

I’ve written here about the difficult position an employer/organization is placed in when its employees are harassed by “outsiders.” On July 20th the Court of Appeal for Ontario illustrated the difficulty by affirming a decision that denied relief from such harassment that a municipality (and its mayor) sought on behalf of the mayor, councillors and staff. The decision suggests that an employer’s duty to provide a safe and harassment free environment provides no basis for a civil remedy. 

Rainy River (Town) v. Olsen, 2017 ONCA 605.

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Ontario workplace violence bill and threat assessment take two – the domestic violence provision

10 Mar

I posted yesterday about the provision in Ontario’s new workplace violence legislation that requires employers to disclose information about individuals who may cause physical injury to workers and my theory that it is most significant because it requires good threat assessment processes. The other provision that is getting talk is the so-called “domestic violence provision.” This, in my view, is an even more direct invitation to embrace good threat assessment processes.

Come June 15th, section 32.0.4 of the OHSA will read:

If an employer becomes aware, or ought reasonably to be aware, that domestic violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

This has people asking, “What is domestic violence?”

The term “domestic violence” has caused a distraction in my view. It is dangerous because it could lead people to get tied up in a mental knot about the variety of violence associated with a threat rather than the threat itself. While I don’t mean to discount the problem of domestic violence in the workplace and the special challenges it raises, the answer to the question above does not likely affect employer duties.

This is because it is not plausible that a threat of physical injury from violence simpliciter deserves any less management than a threat of physical injury from domestic violence. The provision therefore could have read:

If an employer becomes aware, or ought reasonably to be aware, that violence that would likely expose a worker to physical injury may occur in the workplace, the employer shall take every precaution reasonable in the circumstances for the protection of the worker.

This would have been very nice language – subject to interpretation but at least clear in its intent. And if the legislature did want to signal to employers that the risk of domestic violence in the workplace is no less their responsibility to address than the risk of violence simplicter in the workplace, it could have included a deeming provision specifying that “violence” includes “domestic violence.” In my view, the duties arising from such language would have been the same as those to be confirmed by the Bill 168 provisions come June.

This brings us back to threat assessment. Distracting language aside, section 32.0.4 speaks about acting based on facts that ought reasonably be known. It signals that employers should (1) have access to the right people (who can assess a threat based on reports about individual behavior); (2) who can be provided with the right information (including all known behaviors about a threat plus information that can be gathered through reasonable threat inquires); (3) so they can assess threats and take appropriate action at the right time. These basic prescriptions go for all kinds of violence, domestic and otherwise.

Ontario workplace violence bill demands good behavioral threat assessment processes

9 Mar

Many questions have been raised about the provision in Ontario’s new workplace violence legislation that requires employers to disclose information about individuals who may cause physical injury to workers. My take on the provision is that the actual disclosure duty is fairly narrow, and that the provision is most significant because it requires good behavioral threat assessment processes. I’ve laid out my reasoning below.

The section everyone’s talking about is section 32.05(3). It reads as follows:

(3) An employer’s duty to provide information to a worker under clause 25 (2) (a) and a supervisor’s duty to advise a worker under clause 27 (2) (a) include the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if,

(a) the worker can be expected to encounter that person in the course of his or her work; and

(b) the risk of workplace violence is likely to expose the worker to physical injury.

The first question asked about this provision is, “How do we know if a person has a history of violence?” The language of the provision is strict: it does not say “known history of violence.” Does this mean that employers must be omniscient? No.

Health and safety legislation is typically drafted in onerous language to encourage behavior that maximizes protection for workers. Though claims by employers of over-breadth and vagueness about such language are typically unsuccessful, even by promulgating meaningless language that seems to set an absurdly high standard of conduct (such as omniscience), the government cannot preclude a due diligence defence. So the government can encourage employers to act upon knowledge of an individual’s history of violence (as it has done), but can’t sustain a charge based on a failure to be omniscient if it is reasonable to protect a worker by knowing less about another individual’s history.

What is reasonable then? This is certainly a point that will be litigated, but there is a wealth of available literature on threat assessment to give employers guidance today. If I can simplify, this literature requires organizations to (1) have access to the right people (who can assess a threat based on reports about individual behavior); (2) who can be provided with the right information (including all known behaviors about a threat plus information that can be gathered through reasonable threat inquires); (3) so they can assess threats and take appropriate action at the right time.

What about human rights and privacy concerns? Regarding human rights concerns, threat assessment is not about “profiling” an individual based on a stereotype but, rather, is about gathering facts about behavior to understand a potential threat. Performed properly, it should be defensible. Regarding privacy, threat assessment requires access to information about threats. Employers may have a duty to gather information in the course of conducting an assessment, but the more fundamental duty is to “know what you know” by having a system in place for reporting and recording concerning behavior in the workplace, including all violent acts. This conception – know what you know and conduct threat inquires as necessary – seems to strike a fair balance between workplace health and safety and personal privacy.

For those of you interested in reading more about threat assessment, there are some leading resources at the United States Secret Service National Threat Assessment Center. The complete text of Bill 168 is here.

Case Report – Alberta Court of Appeal case discusses qualified privilege and threat reports

15 Nov

Chohan v. Cadsky was decided by the Alberta Court of Appeal on October 16th. The court found that three individuals acted within the scope of a qualified privilege in reporting expressions of concern about a colleague’s mental health and were therefore not liable for defaming the colleague. The Court summarized its finding in the following paragraph:

We dismiss the appeals against Dr. Ohlhauser, Dr. Baker, Dr. Gardener and Capital Health, as we are not persuaded that the trial judge made any reversible error in dismissing those actions. We will address the arguments separately, but commence with the following summary. Dr. Ohlhauser, Dr. Baker, and Dr. Gardener each testified that as a result of expressions of concern from others and/or their personal observations, each had an honest concern about the health of a colleague, and believed that, as a medical professional, he had a duty to either investigate this concern, or inform someone who was in a position to investigate. Each contacted the person he believed appropriate to provide assistance or investigate to ensure that there was no cause for concern. There is no evidence that any one of them contacted individuals who had no interest in knowing and no responsibility to receive the communication because of the position he held in Capital Health. Dr. Block, Dr. Hibbert and Dr. Gardener, the three persons to whom communications were made, each had a responsibility for ensuring that colleagues within their service did not have health issues that might affect patient care or their own well being. These three defendants were not engaged in idle gossip or general discussion in making these communications. In our view, the defence of qualified privilege was designed for exactly such a situation.

The principled aspect of this statement is not surprising, and the application of the qualified privilege defence will always turn on the specific facts. However, given that bona fide reports of potential threats should be encouraged as part of managing workplace (and campus) violence, the case is worth a note.

Chohan v. Cadsky, 2009 ABCA 334.

“Staycation” gives time to discover an excellent podcast on campus and workplace violence

30 Nov

I love driving trips, and the last few trips I’ve taken I’ve come back and blogged about all the podcasts I’ve listened to while on the road (see here and here).  This fall we had to cancel a two week trip out east in favour of a “staycation,” which has been remarkably enjoyable.  Staying home means access to child care, so Seanna and I have had some nice time together, a rarity nowadays.  Mommy and daddy drop Hugs off and go to a matinée (the new Guy Ritchie movie’s pretty fun).  Mommy and daddy drop Hugs and mommy beats daddy 3-0 in squash, and so on…

Anyway, I did get permission to fly out to Halifax to catch a good swell (solitude also being a rarity nowadays).  I’ve spent the last three days surfing myself to death and, while driving between sessions, listening to a great podcast on managing the threat of campus violence.  (For my most detailed pubic contribution on this topic please click here).

The five audio clips published here were taped at an April 2008 program run by the Woodrow Wilson School of Public and International Affairs at Princeton University.  The first clip, Blueprint for a Safer Campus, is a bit slow to start, but sets the stage for the event and discusses the International Association of Campus Law Enforcement Administrators “Blueprint” (linked here), made in response to the Virginia Tech incident.  The second clip is a fantastic discussion of threat assessment by Dr. Marisa Randazzo (former Chief Research Psychologist for the U.S. Secret Service and co-author of the very significant Secret Service/Department of Education report on threat assessment) and Gene Deisinger (Associate Director of Public Safety and Deputy Chief of Police for the Iowa State University Police Division).  Just excellent, and the highlight of the program for me.  The third clip is of Professor Katherine Newman’s keynote address, in which she profiles two K-12 shooting incidents with a view to explaining the motivation of shooters. I got a little burnt out by clips four and five, one on risk assessment and the other on “a regional perspective.”

I’m back to Toronto now and have a week of staycation to go during which I plan to hang out with Hugs, lounge around and challenge Seanna to a re-match.  If I get a chance to listen to anything else of interest I’ll be sure to let you know.

Dan

Ontario’s workplace violence bill and its information sharing component

8 Feb

Bill 29, An Act to amend the Occupational Health and Safety Act to protect workers from harassment and violence in the workplace, was introduced by a private member belonging to the NDP on December 13th of last year. It would amend the Occupational Health and Safety Act to require employers to protect workers from harassment and violence in the workplace whether perpetrated by employees, clients or other individuals the employer serves (e.g. students). This represents an expansion of the Ministry of Labour’s current jurisdiction, which has been held to be limited to addressing the threat of physical violence.

Notably, in its current form, the Bill includes number of duties that are triggered when an employer has reason to believe that harassment or violence has occurred or is likely to occur, including specific duties to:

  • identify the source of the harassment or violence;
  • ensure that further harassment or violence is prevented or stopped;
  • where necessary, take steps to remove the source of the harassment or violence from the workplace; and,
  • contact law enforcement, where appropriate.

As drafted, the Bill does not require routine threat surveillance as a measure to prevent harassment or violence.

Similar bills have been introduced by NDP members in the past, but this Bill comes shortly after a Coroner’s Jury report into the death of, Lori Dupont, a nurse who was killed by her former boyfriend (also a resident physician) at a hospital in Windsor. The Coroner’s Jury report recommends changes to the Ontario Occupational Health and Safety Act. It also includes recommendations that stress the importance of information sharing, medical/behavioral monitoring, clear chains of command and decisive, risk-based decision making. Here is a copy of the report along with the Ontario Hospital Association’s media release.