The Nova Scotia Labour Board has sided with Dalhousie University, overturning two compliance orders issued by an Occupational Health and Safety (OHS) Officer. The orders, which were part of a broader debate over how incidents of sexualized violence should be reported and investigated, had found the university’s Sexualized Violence Policy (SVP) in violation of provincial regulations on workplace violence.
The appeal, filed by Dalhousie, challenged the March 30, 2023 compliance orders. The university argued that its Workplace Violence Prevention Policy (WVPP) sufficiently addressed workplace violence, and that the Sexualized Violence Policy, while supplementary, was not required to meet the same reporting and documentation standards mandated for physical violence under the province’s Occupational Health and Safety Act.
At the heart of the dispute were two key sections of the Violence in the Workplace Regulations: Section 12, which deals with the duty to report incidents of violence, and Section 13(1), which mandates documentation and investigation of those incidents. The OHS Officer had determined that Dalhousie’s policies were deficient in requiring reporting and investigation of all forms of violence, including sexualized violence.
Officer’s interpretation flawed: Dalhousie
In its appeal, Dalhousie University argued that the OHS Officer’s interpretation of the law was flawed. The university maintained that its Sexualized Violence Policy (SVP) and the WVPP were designed to address different forms of violence, with the SVP focused on incidents of sexual violence, which may not always meet the legal definition of workplace violence as outlined in the regulations.
According to the ruling, “the Officer failed to consider the University’s broader policies and procedures dealing with the prevention against violence in the workplace,” including its WVPP, which is intended to address physical violence or threats in the workplace. Dalhousie pointed out that the WVPP “is supplemented by the SVP only where violence is sexualized in nature.”
Narrow definition of workplace violence
The university also took issue with the OHS Officer’s assumption that all incidents covered under the SVP should be reported and investigated under the same terms as physical violence. The SVP covers a range of behaviours, including non-physical actions like harassment and the non-consensual sharing of images.
Dalhousie’s argument centred on the fact that the provincial regulations define workplace violence narrowly, referring only to acts that cause or threaten physical harm. “The WVPP uses the same definition of ‘violence’” as the regulations, Dalhousie argued, whereas the SVP “includes conduct that may not pose a physical threat, bringing it outside of the scope of the definition of ‘violence’ in the Regulations.”
The university further noted that the SVP was developed as part of a 2015 Memorandum of Understanding with the provincial government, which required the institution to have a stand-alone sexualized violence policy. In Dalhousie’s view, enforcing mandatory reporting for all incidents of sexualized violence, as defined under the OHS Act, could “further perpetuate harm against survivors of Sexualized Violence.”
Opposition from union, employee
The interveners in the case, including the Nova Scotia Government and General Employees Union (NSGEU) and J.G., a Dalhousie employee, opposed the appeal. They argued that the university’s policies fell short in protecting workers by allowing some incidents of sexualized violence to be handled informally, without mandatory reporting and investigation.
In their written submissions, the NSGEU contended that “any incident of violence which meets the definition of ‘violence’ as defined by the Regulations—sexualized or otherwise—must be reported, documented, and promptly investigated if it relates to an employee.” The union expressed concerns that Dalhousie’s SVP did not guarantee the same level of protection for employees as the WVPP, particularly in cases where the sexualized violence did not meet the legal threshold for workplace violence.
The Labour Board acknowledged that the Violence in the Workplace Regulations “apply only to physical violence and threats” and do not extend to forms of harassment or psychological violence. It noted that while there is a broader conversation to be had about whether such protections should be incorporated into Nova Scotia’s occupational health and safety framework, this was ultimately a “legislative policy judgement” beyond the purview of the tribunal.
“The SVP does not delimit the scope of what must be reported,” the Board wrote, emphasizing that “in every case of sexualized violence that is also ‘violence,’ reporting is mandatory.” It went on to clarify that Dalhousie’s policies already require reporting and investigation for any act of violence that threatens physical safety, in compliance with the provincial regulations. Therefore, the compliance orders “should be set aside,” it concluded.
The Labour Board’s decision effectively dismisses the OHS Officer’s findings and allows Dalhousie to maintain its current policy framework without further modifications. The ruling has raised important questions about the intersection between sexualized violence and workplace safety regulations, but for now, the board has made it clear that the existing legal definitions of workplace violence remain narrowly focused on physical harm.
The decision also highlights the limitations of the current regulatory framework in Nova Scotia, which, as the ruling noted, “trails most other Canadian jurisdictions” in excluding psychological violence from occupational health and safety legislation.
For more information, see Dalhousie University (Re), 2024 NSLB 91 (CanLII).
