By Michael Watts and David Solomon

The Government of Ontario recently announced that it is establishing a “Workplace Violence Prevention in Health Care Leadership Table” to “better protect health care professionals on the job.” This announcement follows last year’s decision by the Ministry of Labour to lay charges under the Occupational Health and Safety Act (OHSA) against a public hospital for failing to take “every precaution reasonable in the circumstances” for the protection of staff from violent patients. If convicted, the hospital could face a maximum fine of up to $500,000.

With the above context in mind, we briefly review below how, under the OHSA, hospitals, including their directors, officers and supervisors, owe an elevated precautionary duty of care to protect staff that is paramount to the duty of reasonable care owed by hospitals, and their directors and officers, to patients under the Public Hospitals Act (PHA).

Although the courts have not (yet) considered the precautionary standard of care in the context of the paramountcy of the OHSA over the PHA, hospitals can anticipate that these arguments will be made in any litigation brought by the Ministry of Labour alleging a failure to protect staff.

Under the PHA’s Hospital Management Regulation, hospital boards must establish procedures under the bylaws for (i) a safe and healthy work environment in the hospital; (ii) the safe use of substances, equipment and medical devices in the hospital; (iii) safe and healthy work practices in the hospital; (iv) the prevention of accidents to persons on the premises of the hospital; and (v) the elimination of undue risks and the minimizing of hazards inherent in the hospital environment.

Although hospital directors are protected from liability for carrying out their duties under the PHA in good faith, the protection can be lost when directors act in bad faith. Notably, there is no corresponding protection from liability under the OHSA. The Ontario Court of Appeal has stated that directors will be found to have acted in bad faith where the board has exercised its statutory decision-making function for an ulterior purpose – and not for the public good – in circumstances where it had to know that its conduct would likely injure others (see Rosenhek v Windsor Regional Hospital, 2010 ONCA 13).

Under the OHSA, hospital directors and officers have a general duty to take reasonable care to ensure that the corporation complies with (i) the OHSA and the regulations; (ii) orders and requirements of inspectors and directors; and (iii) orders of the Ministry of Labour. Hospitals as employers, along with their supervisors, owe specific duties of care to take “every precaution reasonable in the circumstances for the protection of a worker.” In light of the general duty to ensure compliance with the OHSA owed by directors and officers, it is arguable that they too owe these specific precautionary duties to staff.

At least once a year, the measures and procedures for the health and safety of workers must be reviewed and revised in light of current knowledge and practice. The review and revision of the measures and procedures must be done more frequently than annually if (a) the employer, on the advice of the joint health and safety committee or health and safety representative, determines that such review and revision is necessary, or (b) there is a change in circumstances that may affect the health and safety of a worker.

As noted above, the OHSA expressly provides that its provisions prevail over any general or special Act in Ontario (including the PHA):

2… (2) Despite anything in any general or special Act, the provisions of this Act and the regulations prevail. [emphasis added]

It is therefore clear that the duty of care owed by hospitals to protect staff under the OHSA is paramount to the duty of care owed by hospitals to patients under the PHA. This paramountcy, when considered in light of use of the word “precautions” in the OHSA, suggests that the precautionary principle must guide hospitals in ensuring that staff safety concerns are taken seriously, and that staff are made to feel safe, even if that means implementing or continuing heightened safety precautions that some experts may argue are not proven as being necessary.

Accordingly, hospitals must be prepared for circumstances where competing duties may require hospital boards to prioritize staff safety above patient care in developing or approving policies under the business judgement rule. The Supreme Court of Canada has acknowledged that while the duty to act in the best interests of a corporation includes a duty to treat all stakeholders equitably and fairly, situations may arise where it is impossible to accommodate all stakeholders (see BCE Inc. v 1976 Debentureholders, 2008 SCC 69).

Michael Watts is a Partner in the Toronto office of law firm Osler, Hoskin & Harcourt LLP, and is Chair of the firm’s Health Industry Group. David Solomon is an Associate in the Toronto office of law firm Osler, Hoskin & Harcourt LLP and is a member of the firm’s Health Industry Group.