Employer Retaliation and Employees Rights in Ontario

Laws in many jurisdictions, including Ontario, provide protections against employer retaliation. In Ontario, for example, the Employment Standards Act, 2000 (ESA) and the Ontario Human Rights Code (the Code) contain provisions that prohibit employers from taking adverse actions against employees for exercising their rights or reporting workplace violations. If an employee believes they are facing employer retaliation, they may have legal options, such as filing a complaint or seeking legal counsel.

What Is Employer Retaliation?

Employer retaliation occurs when an employer takes negative actions against an employee in response to the employee engaging in protected activities, such as reporting violations, harassment, or other misconduct in the workplace. Employees have the right to raise concerns about legal or ethical matters without fear of retaliatory actions.

Examples of employer retaliation include:

• Termination or firing: The employee is let go after reporting misconduct.
• Demotion: The employee is moved to a lower-ranking position as punishment for raising issues.
• Reduction in pay or benefits: An employer decreases an employee’s compensation following a complaint.
• Negative performance reviews: Retaliation can also take the form of unjustly poor evaluations.
• Isolation and exclusion: The employee is excluded from key meetings or projects.
• Increased scrutiny: Retaliatory behaviour may include excessive monitoring or disciplinary actions.
• Intimidation or threats: The employee may face intimidation or hostile treatment for their protected actions.

Employee Rights Under the Employment Standards Act

Under the ESA, retaliation is prohibited. Section 74(1) of the ESA lists several protected activities where employees are shielded from penalties, including:

• Asking the employer to comply with the ESA and its regulations.
• Filing a complaint or inquiring about rights under the ESA.
• Exercising any of the leave entitlements (e.g., sick, family, or emergency leave).
• Disclosing or asking about wage information related to equal pay for equal work.

Remedies Available for Employer Retaliation

Employees who experience retaliation may be entitled to various remedies, depending on the specifics of their case. These could include:

• Reinstatement: Employees may be returned to their former position if termination or demotion occurred due to retaliation.
• Back pay: Compensation for lost wages as a result of wrongful termination or demotion.
• Emotional damages: In cases where retaliation has caused psychological harm, compensation may be available.
• Injunctions: A court may issue an order to prevent further retaliatory actions.
• Punitive damages: In cases of egregious conduct, employers may face additional penalties meant to punish their actions.

Ontario Case Law on Retaliation

Ontario case law has further defined what constitutes retaliation under section 74(1) of the ESA. In Mediclean Inc v Mendoza, the Court identified key elements that, if proven, demonstrate employer retaliation:

1. The employee engaged in a protected activity.
2. The employer was aware of the employee’s protected activity.
3. The employer penalized or threatened the employee.
4. The penalty was intended as a response to the employee’s protected activity.

Retaliation Under the Ontario Human Rights Code

The Code also prohibits retaliation in employment contexts. To establish a reprisal claim under the Code, an employee must show that:

1. The employer took or threatened adverse actions.
2. The employee engaged in activities protected under the Code.
3. The employer intended to retaliate for the employee asserting their rights.

What Should You Do If You Face Employer Retaliation?

If you believe you have experienced employer retaliation, you can take the following steps:

• File a complaint under the ESA with the Ontario Labour Relations Board.
• Seek legal advice to explore other civil action options.
• File a complaint under the Ontario Human Rights Code with the Human Rights Tribunal of Ontario (HRTO).

Advice for Employers

Employers should carefully evaluate any disciplinary actions taken against employees who have raised concerns or complaints. If actions are found to be retaliatory, employers may be subject to significant legal consequences, including damages or other penalties.

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

Whistleblower Protection In Ontario