Ontario: What can you ask to anticipate if a person has a history of aggression/violence?

[vickyp]

#102661

Forum: Community

The Occupational Health and Safety Act, Section 32.0.5 (3) requires the school board duty to provide information to a worker under clause 25 (2) (a) and a supervisor’s duty to advise a worker under clause 27 (2) (a) include the duty to provide information, including personal information, related to a risk of workplace violence from a person with a history of violent behaviour if the worker can be expected to encounter that person in the course of his or her work and the risk of workplace violence is likely to expose the worker to physical injury.
In Ontario, all students must complete a student registration form before being permitted to attend a specific school, similar to a patient is registered at a hospital before admission.
To anticipate the actual or potential risk of violence to workers and other students and to ensure appropriate resources and supports are in place prior to admitting the student, our board is considering asking the following question on the student registration form…

“Does the student have a history of aggressive/violent behaviour or self-harming behaviour’   ANSWER: YES – NO – UNSURE

There is some concern that the question cannot be asked due to a contravention with Human Rights legislation

1. Can we legally ask the above question’ Please provide the rationale and reference to any legal cases
2. If not, what question can we ask to provide the same information’

[vickyp]

#103056

Great Q and beautifully set out. Just to clarify, you’re proposing to ask the Q to the students themselves, right’ Presumably, the students are the ones that complete the registration form; but the phrasing is confusing because it refers to the student as a third person.
One more thing: This is a personal opinion, not legal counsel. Please recognize that even though I’m a lawyer, I’m not qualified or capable of providing you legal counsel.
Personally, I think the Q is unobjectionable from a legal standpoint. More precisely, I think you not only may but must look into whether students have a violent background so as to protect other students and people at the site. But I have 2 reservations:
1) WRONG JUSTIFICATION: Sec. 27(2)(a) of OHS Act isn’t the source of legal authority for this Q because it applies where an employer ALREADY KNOWS (OR SHOULD REASONABLY KNOW) that a person has a violent background. Sec. 27 doesn’t expressly say–although it may imply–that you have a duty to find out if they do. Accordingly, I think your legal justification comes more from tort law–particularly the rules of negligence under which you have a duty to exercise reasonable care to protect students, workers, etc. as well as the regulations that apply to educational administrators. While I’m not familiar with these regs., I’d be shocked if they didn’t include rules requiring school adms. to do background checks on students to ensure they’re psychologically fit.
2) SOLUTION QUESTIONABLE: My second concern is a practical one, namely, that students who do have a violent past will ignore the registration form Q or simply answer it untruthfully. While it probably doesn’t hurt to include the Q (especially if lying on the form is grounds for discipline or dismissal), if you really want to dig out the information, you need to do a police records or other background check. You’ll need the student’s consent to both do the check and, if you’re using a third party checker, to the checker’s disclosure of the findings to you. Of course, you should also do reference and other checks.
Sorry for going on so long but it sounds like you may need these details in communicating with your board. Hope that helps and feel free to follow up with me directly. Glenn. glennd@bongarde.com

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