Introduction
In a recent and significant decision from the Ontario Labour Relations Board (the “Board”), Ontario Nurses’ Association v A Director under the Occupational Health and Safety Act, 2025 CanLII 14562 (ON LRB) (Kugler, January 17, 2025), the Board considered the difference between “workplace harassment” and “workplace violence” under the Occupational Health and Safety Act (OHSA) in the context of serious sexual misconduct. The case involved a physician who sexually assaulted a hospital employee. The physician was later criminally convicted for this conduct.
The Board ultimately found that the conduct constituted both workplace harassment and workplace violence under the OHSA and emphasized that the two are not mutually exclusive.
Background
The incident took place in 2018 at a hospital. A physician – described as a white male surgeon and former Chief of Surgery – followed a Black female housekeeper into an isolated area of the hospital. Once alone, he tightly embraced her and sexually assaulted her by grabbing and squeezing her breast without consent.
The physician was criminally charged with, and convicted of, sexual assault. His conviction was upheld on appeal.
In response to the above, the Ontario Nurses’ Association (ONA) appealed a Ministry of Labour inspector’s decision not to issue orders against the hospital in relation to the incident. ONA argued that the employer failed to fulfill its obligations under the OHSA by failing to recognize or respond to the incident as workplace violence. ONA also sought a general declaration that all sexual assaults under the Criminal Code constitute workplace violence under the OHSA.
The employer, supported by the Ministry of Labour, maintained that the incident was a case of workplace harassment rather than violence and asserted that its response met the requirements of the OHSA.
Board’s Decision and Reasons
The Board held that the physician’s conduct met the statutory definition of workplace violence under the OHSA, which includes “the exercise of physical force… that causes or could cause physical injury.” While the employee did not suffer a physical injury, the Board stressed that the analysis must be objective and contextual, and must consider whether physical injury could have occurred.
Key factors supporting the Board’s conclusion included:
- The nature and force of the physical contact.
- The significant power imbalance between the physician and the employee.
- The secluded nature of the location.
- The potential for escalation had the employee physically resisted.
The Board noted that “workplace violence” under the OHSA is concerned with physical harm, and does not extend to psychological or emotional harm. Nonetheless, it affirmed that even a single act of non-consensual physical contact may meet the threshold, depending on the circumstances.
In terms of ONA’s request for declaratory relief, the Board declined to declare that all sexual assaults under the Criminal Code constitute workplace violence under the OHSA. The Board held that it lacked jurisdiction to issue broad, systemic rulings in the context of an appeal under section 61 of the OHSA, which is limited to reviewing the specific decision of the Ministry inspector.
Sexual Violence vs. Harassment – Why the Distinction Matters
In its reasons, the Board addressed a common misconception: that sexual misconduct in the workplace is automatically categorized as either harassment or violence, but not both. The Board expressly rejected this dichotomy, affirming that the same conduct can – and in some cases, should – be characterized as both workplace harassment and workplace violence under the OHSA.
This distinction has practical and legal significance. Under the OHSA, employers are required to assess risks of workplace violence, develop policies and procedures to address it, and take specific steps in response to violent incidents. If conduct is misclassified as harassment only, an employer may fail to meet its obligations to assess risk, protect workers, and involve joint health and safety committees as required.
By confirming that sexual misconduct can fall under the OHSA’s violence provisions, the Board reinforced the need for employers to properly assess and respond to incidents involving non-consensual physical contact, particularly those involving power imbalances or isolated settings.
The Board did not address the issue of whether the hospital complied with its obligations with respect to workplace violence.
Conclusion
This decision affirms that sexual misconduct in the workplace may constitute both harassment and violence under the OHSA. Employers must take care to assess each incident in its full context to determine whether the conduct involved the exercise of physical force that could have caused injury. Failing to do so may result in non-compliance with the OHSA’s workplace violence provisions, even where an employer believes it has addressed the matter as harassment.
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