What is Reprisal?

Section 50 of the Occupational Health and Safety Act (“the OHSA”) and section 8 of the Human Rights Code (“the Code”) prohibit reprisal by an employer or employee. Reprisal is an important legal provision because it ensures that individuals may claim and enforce the fundamental rights embodied in the Code and the OHSA, without fear or intimidation. Further, it protects the integrity of the investigation process. 

Under the OHSA, employers are prohibited from: dismissing or threatening to dismiss an employee; disciplining, suspending or threatening to discipline or suspend an employee; imposing any penalty upon an employee; and/or, intimidating or coercing an employee because the employee acted in compliance with the Act and/or lodged a Complaint.

Under the Code, individuals have “a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.” 

In the human rights context, the test for reprisal was addressed in Noble v. York University, 2010 HRTO 878 (CanLII). The following elements must be established to prove reprisal: 

  • An action taken against, or threat made to, the complainant;

  • The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

  • An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

As stated directly above, intention must be proven to establish reprisal. This is in contrast to allegations of discrimination where intention is not a necessary element to prove a violation occurred. In Noble v. York University, 2010 HRTO 878 (CanLII), the Tribunal addressed the issue of proving intent. They recognized that reprisal is an act that is typically covert. As such, evidence of direct intent may be difficult to establish. The Tribunal stated, “Intention may be prove[n] by inference, drawn from the whole of the evidence.” The Respondent would then be required to provide a reasonable explanation for the alleged retaliatory conduct.

Further, the Tribunal in Noble v. York University, 2010 HRTO 878 (CanLII) contemplated the following principles in its determination on reprisal:

  • There is no strict requirement that the complainant has filed a complaint or application under the Code; and, 

  • There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

The last point above is important to note. A complainant who cannot establish a violation of the enforced human right may still be able to establish reprisal on the basis of the complaint or enforcement of the human right. On this point, the Ontario Superior Court of Justice stated in Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177, “Without a strict prohibition against reprisals, the purposes and effectiveness of the statute would be significantly diluted.”

Lauren JonesComment