Employer Retaliation and Employees Rights (in Ontario)

Laws in many jurisdictions, including Ontario, provide protections against workplace reprisals. In Ontario, for example, the Employment Standards Act, 2000 (ESA), and the Ontario Human Rights Code (the Code) have provisions that prohibit employers from retaliating against employees for exercising their rights or reporting workplace violations. If an employee believes they are facing workplace reprisal, they may have legal avenues to address the situation, such as filing a complaint with the appropriate regulatory body or seeking legal advice.

What is a Workplace Reprisal

A workplace reprisal refers to a situation in which an employer or superior takes negative actions against an employee as a response to the employee’s engagement in protected activities, such as reporting misconduct, discrimination, harassment, or violations of laws and regulations within the workplace. These protected activities are often related to ethical, legal, or policy concerns, and employees should be able to raise them without fear of retaliation.

Workplace reprisals can take various forms, including but not limited to:

• Termination or Firing: An employee might be terminated from their job as a direct response to their reporting of misconduct or other workplace issues.
• Demotion: An employee might be demoted from their current position to a lower-ranking position with reduced responsibilities and compensation due to their protected activities.
• Reduction in Pay or Benefits: An employer might cut an employee’s pay or benefits as a way of punishing them for engaging in protected activities.
• Negative Performance Reviews: An employee’s performance reviews might be unjustly downgraded after they have reported workplace issues.
• Isolation and Exclusion: An employee might be isolated or excluded from important meetings, projects, or opportunities as a form of retaliation.
• Increased Scrutiny: An employer might subject an employee to heightened scrutiny, such as excessive monitoring or increased disciplinary actions, as a way of retaliating.
• Intimidation or Threats: Employees might be subjected to intimidation, threats, or hostile behavior as a response to their protected activities.

Employee Rights and Reprisal under the Employment Standards Act

Reprisal is prohibited under the ESA. Section 74(1) of the ESA contains a non-exhaustive list of activities in which an employer is prohibited from penalizing or threatening to penalize employees,  such as

a)       Ask the employer to comply with the Employment Standards Act, 2000 (ESA) and its regulations;

b)      Asking questions about rights under the ESA;

c)       Filing a complaint under the ESA;

d)      Exercising or trying to exercise a right under the ESA;

e)      Giving information to an employment standards officer;

f)        Asking about the rate of pay paid to another employee to determine if an employer is providing equal pay for equal work;

g)       Disclosing their rate of pay to another employee to determine if an employer is providing equal pay for equal work;

h)      Taking, planning on taking, being eligible or becoming eligible for a pregnancy, sick, bereavement, family responsibility, declared emergency, family caregiver, family medical, critical illness, organ donor, reservist, domestic or sexual violence, crime-related child disappearance or child death leave;

i)        Being subject to a garnishment order (i.e., a court order to have a certain amount deducted from wages to satisfy a debt);

j)        Participating in a proceeding under the ESA; and/or

k)       Participating in a proceeding under section 4 of the Retail Business Holidays Act (regarding tourism exemptions that allow retail businesses to open on holidays).

Remedies Available to Employees in Response to Retaliation 

In response to workplace reprisal, employees may have access to a range of remedies to address the unjust actions taken against them. The specific remedies available can vary depending on the jurisdiction, the nature of the reprisal, and the laws in place. In Ontario, for instance, employees have certain rights and protections against workplace reprisals. Some potential remedies available to employees in response to reprisal may include:

Reinstatement

If an employee was terminated or demoted as a result of reprisal, one potential remedy could be to reinstate them to their previous position or a position of equivalent status and compensation.

Back Pay

Employees who suffered financial losses due to the reprisal, such as loss of wages during a period of unemployment, may be entitled to back pay for the time they were affected.

Compensation for Damages

Employees might be entitled to compensation for any emotional distress, humiliation, or other psychological harm they experienced as a result of the reprisal.

Injunctions

In some cases, a court might issue an injunction to prevent further reprisal actions from taking place, ensuring the employee’s rights are protected moving forward.

Correction of Records

If the reprisal resulted in negative performance evaluations or records, the employee might have the right to have those records corrected or expunged.

Legal Costs

If an employee takes legal action against their employer and is successful in proving the reprisal, they might be entitled to have their legal costs reimbursed.

Punitive Damages

In certain cases, if the employer’s actions were particularly egregious or willful, the employee might be awarded punitive damages in addition to compensatory damages. These damages are meant to punish the employer for their behavior.

Non-Monetary Remedies

In some situations, remedies might include changes to workplace policies, training for employees and supervisors, or other measures aimed at preventing future reprisals.

It’s important for employees who believe they have experienced workplace reprisal to seek legal advice and understand their rights and options. The process for seeking remedies can involve filing a complaint with relevant regulatory bodies, initiating legal proceedings, or engaging in mediation or arbitration, depending on the circumstances and the applicable laws.

Ontario Case Law

Ontario case law has established four elements which, if proven, demonstrate that an employer has engaged in acts of reprisal against an employee. Mediclean Inc v Mendoza holds that a  breach under section 74(1) of the ESA will arise if:

• Employee performed one of the protected activities listed above;
• The employer knew that the employee engaged in the protected activity;
• Employer penalized or threatened to penalize the employee; and
• The employer intended to take disciplinary action against the employee for engaging in the protected activity.

When an employee claims that their employer has taken negative actions against them that constitute reprisal, the burden falls on the employer to show that they have not engaged in acts of reprisal.

Reprisals and Employee Rights under the Ontario Human Rights Code

Section 8 of the Ontario Human Rights Code (the Code) also prohibits reprisals in an employment and labour context.

To make out reprisal under the Code, the employee does not need to show that their rights have been infringed. Rather, in their claim, the employee need only demonstrate that they experience the following:

• employer is taking or threatening to take reprimand action against the employee;
• action or threat of action results from the employee asserting their rights under the Code; and
• the employer intends their actions and/or threat of action to be in response to the employee asserting their rights under the Code.

All three factors must be found to prove reprisal has or is occurring under the Code.

What Should You Do If Your Employer Retaliates and Violates Your Employee Rights?

Complaints under the ESA

If you believe you have been reprised for engaging in any of the above activities listed under section 74(1) of the ESA, you can file a complaint with the Ontario Labour Relations Board (OLRB). You would be required to complete a form A-53 or C-26. You can contact the Ontario Ministry of Labour if you need assistance with the forms or information about the filing process. However, the Ministry of Labour cannot represent you or advise you as to whether your claim, in fact, constitutes reprisal. In these cases, you can consult an employment and labour lawyer who can provide legal advice catered to your unique situation.

Alternatively, you can pursue a civil action in court instead of filing a complaint with the OLRB.

Complaints under the Code

As previously discussed, section 8 of the Code prohibits reprisal and may offer remedies. To file a complaint under the Code, a Form 1 Application must be completed and submitted to the Human Rights Tribunal of Ontario (HRTO). A free guide is available online if you wish to commence a Human Rights Application on your own, or you can consult a human rights lawyer who can assist you with preparing your Application to the HRTO.

Advice for Employers Accused of Reprisal

Employers should carefully consider disciplinary actions taken towards employees and whether those actions are in connection with any conduct and/or complaints made by the employee in relation to their employee rights. If the disciplinary actions are retaliatory in nature, they could constitute a reprisal, and the employee could be justified in seeking damages.

If you have been served with a claim of reprisal, you may want to seek legal advice from a lawyer specializing in employment and labour law, depending on the forum in which the claim is brought. When an employer is served with a form A-53 or C-26 from the OLRB, a form A-54 should be submitted to the OLRB in response. In the event that an employer is served with a Form 1 Application from the HRTO, a Form 2 Response should be submitted to the HRTO. An employment and labour lawyer can assist employers in preparing and filing their responding materials with both institutions.

Conclusion

In Ontario, multiple statutory protections are available to protect employee rights regarding reprisals. Both the ESA and the Code prohibit employer retaliation against employees for asserting their rights in the workplace. Remedies available to employees could include reinstatement of their position and damages for lost wages.

An employment and labour lawyer can help you determine if you have been reprised, file claims, negotiate with an employer or employee, or help you defend against a claim of reprisal.

Contact Us

If you are an employee or employer in need of assistance with reprisal. Our team of experienced workplace lawyers at Achkar Law can help.

Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we would be happy to assist.

Further Reading

• Ontario Employment Standards Act, 2000: Your Handbook
• The Ontario Human Rights Code: A Primer
• An Employment Lawyer: 5 Questions To Ask
• Whistleblower Protection In Ontario