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Lawyers · Patent and Trade-mark Agents
WORKPLACE VIOLENCE:
LEGAL OBLIGATIONS
AND RESPONSIBILITIES
November 30, 2005
Health Care Health and Safety Association of Ontario
Eric M. Roher
Partner
Borden Ladner Gervais LLP
phone: 416-367-6004
email: [email protected]
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What is Workplace Violence?

“Any action, act, omission or incident in
which an employee or worker is abused,
threatened, harmed, injured or assaulted
arising out of his or her employment or
work … ”
Norman Keith
Canadian Health and Safety Law
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What is Workplace Violence? (continued)

“Any act of aggression that causes
physical or emotional harm, including
assault (any attempt to inflict physical
harm on a worker), threat, verbal abuse,
sexual harassment, and racial or
religious harassment.”
Ontario Public Service Employees Union
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Violence includes:

Assault (threat or injury)

Battery (unlawful force)

Threats (intent to harm)

Sexual harassment (unwelcome advances)

Verbal abuse
Ontario Nurses’ Association
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Violence also includes:

Name-calling

Swearing

Hitting

Biting, scratching and pinching

Using a weapon
British Columbia Nurses’ Union
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Statistics and Trends

More than ½ of Registered Nurses have
been physically assaulted in the
workplace.
Study from the Registered Nurses’
Associations in Manitoba and Ontario
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Statistics and Trends (continued)

Of 400 Nurses surveyed, 63% had
experienced verbal abuse in the past
year.

35% experienced attempts at physical
harm.

21% had been victims of physical attack.
Nova Scotia Study
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Statistics and Trends (continued)

Of 800 Ontario Nurses surveyed, 59%
had been physically assaulted on the job
in their career.

35% in 12 months prior to the survey.
Ontario Nurses’ Association, 1995
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Statistics and Trends (continued)

Younger clinicians and nurses are more
often the target of client aggression, due
to limited experience and lack of training.

Health care workers face similar level of
risk to that of police.
(Boyd 1995)
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Common Law Principles

Negligence.

Duty of care, breach, causation, and
damages.

Protect individuals from reasonably
foreseeable risks of injury.

Legal principles inform violence
prevention and emergency response
strategies.
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Burden of Proof
Burden of proof is on the plaintiff to show,
on the balance of probabilities, that the
defendant did not meet the standard of
care of a reasonable person in given
circumstances.
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Elements of Negligence

Defendant owed a duty of care to the
plaintiff.

Defendant breached the duty of care.

Defendant’s breach was cause of
plaintiff’s injury.

Plaintiff suffered actual damage or loss
as a result of the injury.
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Foreseeability

Key in determination of whether an
employer had legal responsibility to
take action.

Not only what an employer knew, but
also what it ought to have known.

Employer took reasonable steps to
reduce risk of injury/accident.
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Applicable Legislation

Occupational Health and Safety Act

Workplace Safety and Insurance Act

Ontario Human Rights Code

Compensation for Victims of Crime Act

Regulated Health Professions Act

Criminal Code (Canada)
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Laws established

Violence is unacceptable.

Offenders are liable for their actions.

Victims or relatives may be compensated
for injuries resulting from an act of
violence.

Duties and responsibilities for
all workplace parties.
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Occupational Health and Safety Act

The OHSA came into force in 1979.

Designed to set administrative, legal
procedural standards for health and safety in
Ontario’s workplaces.

Achieves these ends through an “internal
responsibility system.”

Places responsibility for health and safety on
the stakeholders by creating duties for
employers, supervisors and workers.
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OHSA – Employer’s Duties

Employer shall provide information,
instruction and supervision to a worker
to protect his/her health and safety –
s.25(2)(a).

Employer must take every reasonable
precaution under the circumstances for
a worker’s protection – s.25(2)(h).
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OHSA – Employer’s Duties (continued)

Employer must prepare and review, at
least annually, a written occupational
health and safety policy.

Must develop and maintain a program
to implement that policy – s.25(2)(j).
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OHSA – Supervisor’s Duties

Supervisor shall advise a worker of any
potential or actual danger to the worker’s
health and safety of which the supervisor is
aware – s.27(2)(a).

Supervisor shall provide a worker with written
instructions about protective measures and
procedures – s.27(2)(b).

Supervisor shall take every reasonable
precaution in the circumstances for the
worker’s protection – s.27(2)(c).
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OHSA – Worker’s Duties

Workers are required to report to his or
her employer or supervisor the
existence of any hazard – s.28(1)(d).

The requirement is interpreted to
include any threat of violence or
presence of a violent person.
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Ministry of Labour - Inspectors

Have the authority to issue work orders
and stop-work orders.

Have exercised this authority when
they deem that a hazard exists
because of inadequate staffing levels.

Will determine if employee has been
provided suitable training and policies
to protect from workplace violence.
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Adjudicators

Have ruled that health care workers are
entitled to information about aggressive
or violent clients.

Have ruled that employers must
provide adequate staffing levels as a
protective measure.
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Risk of Violence

Where inspectors determine that
workers are exposed to a risk of
violence, will direct the employer:

to address the risk

to assure appropriate workplace program
is implemented

that the joint health and safety committee
be consulted in workplace violence
prevention program
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Ontario Human Rights Code

Harassment is a prohibited activity under
the Code.

Employee has a right to freedom from
harassment in the workplace because of
race, ancestry, place of origin, colour,
ethnic origin, citizenship, creed, age,
record of offences, marital status, family
status or handicap.
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Human Rights Code

Harassment is defined as:
“engaging in a course of vexatious comment
or conduct that is known or ought reasonably
known to be unwelcome.”

Harassment includes inappropriate
comments, jokes or suggestions.

Sexual harassment includes unwanted
touching.
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Human Rights Code (continued)

Employers must prevent or stop
harassment in the workplace.

Workers have a right to file a complaint
with the Ontario Human Rights
Commission.

Employers cannot penalize a worker
who has filed a complaint.
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Criminal Code

Assault is determined as:

Intentional application of force to another
person without that person’s consent.

Includes attempts or threats to use force,
including gestures that imply a serious
threat.
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Criminal Code (continued)

If the police lay a charge under the
Criminal Code, the Crown Attorney will
prosecute the case.

The victim will be called as a witness.

Standard of proof is “beyond a reasonable
doubt”.
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Risk Management
Risk management is the process of
planning, organizing and controlling
activities that contain an element of risk
of injury to the worker.
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Risk Management involves the following
steps:

Identify and assess exposures to injury.

Identify various risk management
strategies to address these exposures.

Select and implement the appropriate
strategy or strategies.

Monitor results and make improvements
where necessary.
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Health workers are especially at risk
when:

working alone, especially at night

interacting with violent clients

dealing with public complaints

providing care and advice that impact on
a client’s life

handling money or medications
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Other practices that increase
vulnerability to violence:

understaffing in busy clinics or
emergency departments

letting staff work alone with clients

having staff work at night in high crime
areas

failing to provide sufficient training

failing to provide communication devices
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Develop a Workplace Violence
Prevention Program
1. Obtain management commitment and
employee involvement.
2. Develop a policy, with clear goals and
objectives.
3. Conduct a worksite risk assessment.
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Develop a Workplace Violence
Prevention Program (continued)
4. Put violence prevention, control and
response measures in place.
5. Educate employees about the program
and train them.
6. Evaluate the program and procedures.
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Environmental Design

Provide a calm atmosphere.

Ensure furniture can not be used as a weapon.

Keep areas well lighted.

Maintain secured areas where public access is
limited.

Eliminate overcrowding in psychiatric facilities.

Install and use security systems.
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Program Objectives

Develop a policy of “zero tolerance” for
workplace violence.

Describe the standard of behaviour
expected of all persons in the workplace.

Provide a mechanism that encourages
employees to report all incidents promptly.

Develop a plan for maintaining security.
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Program Objectives (continued)

Develop understood and communicated sanctions
for violent acts.

Train workers regarding the forms of workplace
violence, its effects and how to prevent it.

Provide for a procedure to review incident reports.

Continually re-evaluate existing safety procedures.
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Conclusion
To create major changes in the workplace,
the organization needs:

a sense of urgency;

a guiding coalition; and

vision and strategy.
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Conclusion (continued)

Commitment of the employer to make
workplace violence prevention a priority.

Organization’s management team must
recognize the need to change.

Overall will and allocation of resources to
create a workplace violence prevention
program and communicate it to
stakeholders.
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“Someone has to do it and it is
appallingly pathetic that
it has to be us.”
Jerry Garcia
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Thank You!
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Lawyers · Patent and Trade-mark Agents
TOR0l-3141460
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