A recent decision out of Nunavut indicates that the issue of whether harassment is a “safety” issue under workplace safety laws, is answered by an analysis of the legislation in place.
In Nunavut (Minister of the Environment) v. WSCC, 2013 NUCJ 11 (CanLII), the court found that the territory’s legislation does not permit work refusals for harassment. Court compared Nunavut’s Safety Act with Ontario’s Occupational Health and Safety Act.
The Hon. Madam Justice Cooper, of Nunavut Court of Justice, took note that OHSA allows employees to refuse to work due to actual or apprehended workplace violence — but not workplace harassment. This policy choice was deliberate on the part of the government, she found.
After 2009 amendments to OHSA, “The right to refuse work is extended to instances where there are reasonable grounds for fearing workplace violence; however, the same right to refuse work does not extend to workplace harassment,” the decision notes.
In the Nunavut case, a safety officer had determined that a biologist working for the government had been harassed, constituting an “unusual hazard” under the Safety Act. The officer concluded the biologist had a right to refuse work because of the hazard. Court overturned that decision.