How far does an employer have to go in order to meet its statutory duty to provide a healthy and safe workplace? What can you do when a former employee insists on returning to the workplace and causing trouble? In General Motors of Canada Company v. Osita-Adubasim, the Ontario Superior Court of Justice (“ONSCJ”) found that in the right circumstances, an employer could obtain an injunction to ban them from the workplace.
The internal responsibility system
The Canadian occupational health and safety regime operates on the internal responsibility system. This means that every party in the workplace, from worker to employer, has responsibilities to ensure that their workplace is healthy and safe. In Ontario, these obligations are set out in its Occupational Health and Safety Act (the “OHSA”).
The primary responsibility for workplace health and safety falls on the employer. Beyond the duties specifically set out, the OHSA includes the catch-all provision of section 25(2)(h) which requires that an employer “take every precaution reasonable in the circumstances for the protection of a worker” in the workplace.
What “every precaution reasonable” is varies by situation. In Osita-Adubasim the ONSCJ showed how far it goes — and that it can support equitable relief in the form of an injunction.
The facts
The defendant had worked at the plaintiff’s (General Motors) facility through a temporary help agency. In September 2022 his employment was terminated after he appears to have been accused of sexual harassment (the case does not go into detail). His access to the facility was terminated.
Despite this, the defendant attended the facility eleven times between December 4, 2022 and February 23, 2023. He attended dressed for work in safety gear and proceeded through a high traffic area with employees arriving for the shift. He gained entry several times, only to be escorted out by the plaintiff’s security staff.
The plaintiff delivered a Notice of Trespass to the defendant on December 7, 2022, which instructed him to not contact, trespass, or enter the facility. The plaintiff delivered another Notice of Trespass and a Site Ban on January 23 and February 7, 2023.
The defendant ignored these and kept coming. Each time, the plaintiff contacted the Durham Regional Police Services (“DRPS”) to remove him. After the fifth and sixth incidents the DRPS issued him a trespassing citation. On his seventh attempt the defendant encountered a locked gate, and contacted DRPS to have the plaintiff open it. DRPS contacted the plaintiff and the defendant was escorted from the facility.
The defendant’s conduct made it clear that he was a hazard to the plaintiff’s staff. On the first time he gained entry to the facility after his dismissal he cornered a female employee, intruded upon her personal space, and demanded to see his manager. Security escorted him out.
The defendant briefly evaded security on his fifth visit. When security found and restrained him he pushed them, injuring a guard. Despite the guard complaining to DRPS, no investigation occurred, and no charge was laid. His next several entry attempts were also unsuccessful. He also had begun to act in a “violent manner”, including spitting on a security guard. DRPS advised the plaintiff that it would charge the defendant with assault but did not follow through. DRPS advised that it could assist if the plaintiff obtained a restraining order against the defendant.
The plaintiff had to assign four additional security guards during shift changes, at an hourly cost of $63.00 per guard. Even with these new precautions, a number of the plaintiff’s employees expressed concerns about their personal safety.
The injunction
The plaintiff moved for an injunction, requesting the following relief:
- a permanent and/or interlocutory injunction, preventing the defendant from:
a. trespassing at the plaintiff’s premises;
b. harassing, intimidating or assaulting or threatening to harass, intimidate, assault or harm the plaintiff’s employees, servants, agents, suppliers, contractors, customers or visitors at the premises;
c. causing or threatening to cause mischief at the premises; and,
d. causing or threatening to cause damage to property at the Premises. - an Order that the defendant shall not intimidate or harass, assault or threaten or attempt to intimidate or harass, assault or threaten any of the plaintiff’s employees, servants, agents, customers, suppliers, visitors and/or contractors, attempting to use, access or exit the Premises; and
- an Order that the DRPS shall do all things necessary to assist the Sheriff in preventing or stopping breaches of any court Order(s).
The Court applied the three part test for an injunction:
- There is a serious issue to be tried;
- The moving party will suffer irreparable harm which cannot be compensated by damages; and
- The balance of convenience favours granting the injunction.
The Court noted that the defendant was engaging in tortious and unlawful behaviour, was undeterred by previous interventions, and that this conflicted with the plaintiff’s duty under OHSA to provide a safe work environment. This met the first stage of the test.
The Court also found that the defendant’s conduct created the risk of a repetition of assaults and other harassment, none of which would be compensable by an award of damages. Even if these were, there was no evidence before the Court that the defendant could pay damages if ordered. The second stage of the test was met.
Finally, the Court found the balance of convenience favoured granting the injunction — the defendant had no right to attend the facility, and would not be prejudiced by the injunction. The Court also found that including the DRPS in the injunction was reasonable; the DRPS had previously advised the plaintiff that it could provide a greater amount of assistance if a restraining order was obtained.
The Court granted the injunction, with no end date.
Conclusion
Obtaining injunctive relief requires an applicant to clear a high bar in terms of showing that the relief is required. As a result, injunctions are rarely awarded — and even when they are, it is typically for a short period of time. The outcome in this matter demonstrates the degree of seriousness to which Ontario takes workplace health and safety, and the lengths an employer may sometimes have to go to in order to ensure the health and safety of its staff.
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