Update on Workplace Violence

By Janina Fogels

The latest news stemming from the Dupont Inquest concerns the divergent reactions to the recommendations of the Coroner’s jury – demonstrating, in our view, that the implementation process requires persistent and networked support from those working in the affected sectors. Over the next few issues of Update for Professionals, we will provide progress reports on the jury recommendations which concerned, specifically, issues around violence at work as these have a widespread impact on workplaces generally. Read the original jury recommendations here.

Background Facts

Lori Dupont was a Registered Nurse and member of the Ontario Nurses' Association (ONA) working at Hotel-Dieu Grace Hospital in Windsor, Ontario. In 2005 she was murdered by her former partner, Dr. Marc Daniel. Daniel, an anaesthesiologist at Hotel-Dieu Grace, then killed himself by lethal injection. Throughout the subsequent 10-week Inquest, the jury heard evidence about the history of Daniel's abusive conduct at work, the culture of physician dominance at the hospital, the systemic problem of "disruptive behaviour" on the part of physicians generally, and the physician governance structure under the Public Hospitals Act.

On February 1, 2008, media reports stated that the Hotel-Dieu Grace Hospital Board of Directors refused to publicly endorse all 26 recommendations made by the Coroner’s jury. But the same newspaper clarified a few days later that the hospital was in fact committed to implementing 13 of the 26 recommendations – those which specifically apply to either Hotel-Dieu Grace or hospitals in Ontario generally. Meanwhile, over at Windsor Regional Hospital, the Board of Directors agreed at a public meeting on February 7, 2008 to send a letter to the Ontario Hospital Association endorsing the full set of recommendations.

A combination of an influx of decisions ordering penalties for harassment and bullying at work, coupled with top-down, preventative legislative efforts and a more bottom-up impetus for internal change to corporate culture, seem to be making a difference at last in the struggle for safe workplaces.

Legislative Efforts

Infusing Health and Safety Law with the Language of Violence Prevention

New Democrat MPP Andrea Horwath introduced Bill 29, Occupational Health and Safety Amendment Act (Harassment and Violence), 2007. It passed its first reading on December 13, 2007. This bill was first proposed back in 2005.

It proposes a substantial update to the current health and safety regime, which lags behind more progressive laws targeting workplace harassment and violence in other provinces. We are pleased to see that harassment and violence are defined in a way to include psychological or non-physical acts, such as threatening or aggressive statements.

The Act attempts to captures work-related harassment or violence as:

(a) harassment or violence, whether or not the harassment or violence occurs at the workplace, by,

(I) a worker’s employer or supervisor,
(ii) another worker who works at the same workplace,
(iii) a client, patient, customer or other person who receives services from the employer,
(iv) an agent, representative or family member of a person described in subclauses (I) to (iii), or
(v) any other person on the employer’s premises, or

b) harassment or violence that has the effect of interfering with the performance or safety of any worker at the workplace or that creates an intimidating, hostile or offensive work environment for any worker.

This definition is broad enough to capture abusive behaviour between co-workers occurring offsite. The list of protected parties is also fairly extensive.

Bill 29 also includes a 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 ensure that further harassment or violence is prevented or stopped; to, where necessary, take steps to remove the source of the harassment or violence from the workplace; and, to contact police when appropriate.

Importantly, the Bill would also change the powers of the Ministry of Labour Inspectors, so that the Inspectors could investigate work refusals based on actual or threatened harassment or violence.

According to its current internal policy, the Ministry of Labour will not respond to calls from employees refusing to work due to workplace violence in the same way as it would respond to refusals based on hazards posed by a malfunctioning machine or equipment; rather, they are treated as “complaints”. At the moment, the Act and its enforcing Ministry does not consider a person (a dangerous co-worker, client, or person on the premises) as a “physical condition of the workplace that is likely to endanger”.

Work refusals are a step up from complaints, because the employer is required to investigate incidents immediately and in the presence of witnesses. The worker can continue to refuse the work if he or she has reasonable grounds for believing that the work continues to be unsafe, even after the employer’s investigation. An Inspector is mandated to come to the workplace to investigate the refusal. The Inspector would be empowered to order that the person who is the source of the violence or aggression be removed from the job, until the investigation is complete. At the end point of the investigation, the Inspector would be able to order the employer – a hospital or any other workplace in Ontario – to “make such arrangements” determined to be necessary to prevent future occurrences.

Bill 29: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=1938

Ontario’s Domestic Violence “Law”

The latest in a series of recent efforts to prevent and at least curb the effects of violence between intimate partners, Bill 10, the Lori Dupont Act (Domestic Violence Protection), 2007, passed its first reading on December 5, 2007. It was timed to coincide with the International Day for the Elimination of Violence against Women (November 25). Progressive Conservative MPP John O’Toole worked with the Dupont family and others to try draft this Bill and have it repeal the Domestic Violence Protection Act, 2000.

Bill 10 appears to be a near replica of the existing Domestic Violence Protection Act. Some may remember this legislation as the one championed by then-Attorney General of Ontario Jim Flaherty. At the time, however, it was heavily criticized by both police and women’s advocates. As a result, it was passed but never implemented.

The bill re-introduces the “intervention order” and the “emergency intervention order”. Where the application for the peace bond failed Lori Dupont, the intervention order would be granted if the court is satisfied that domestic violence has occurred and that a person applying may be at risk of harm. An intervention order would be tailored to specific circumstances and could, amongst other features, restrain the named party from attending or entering any place regularly attended by the person making the application, including a place of employment. The named respondent could also be ordered to stay a certain specified distance from the applicant.

An intervention order could also be granted on an emergency basis by the court, a designated judge or a justice. The key factor, in addition to the factors that the court would weigh in a regular order, is whether the person at risk would require the order on an urgent and temporary basis. Breaches of either order would results in charges under the Criminal Code.

Bill 10 contemplates a future date when emergency intervention orders would be available 24 hours a day, and seven days a week throughout Ontario. The bill imposes stricter timelines throughout the entire process, so that these applications for protection do not get clogged in the system.

Bill 10: http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=1927