Lessons from a Costly OHSA Reprisal Decision: How Employers Can Limit Liability

On May 1, 2026, the Ontario Labour Relations Board (OLRB) issued its remedy decision in Braganza v. Randstad Canada (LRB Case No. 1768-23-UR), awarding a self-represented applicant $195,833.26 in compensation following a finding of reprisal under section 50 of the Occupational Health and Safety Act (OHSA).  

The decision offers important guidance on how the Board approaches wage-loss calculations, the counterfactual “but for” analysis of hypothetical employment duration, and the evidentiary burdens employers bear at the remedy stage—even where they can point to a genuine business restructuring. It is also a stark reminder that winning on the facts at remedy requires the same documentary rigour demanded at the liability phase. 

Background 

In a liability decision dated October 17, 2025 (CanLII 112295 (ON LRB)), Vice-Chair Brian D. Mulroney found that Randstad Canada had engaged in a reprisal against Vanessa Braganza, contrary to section 50 of the OHSA, by terminating her employment on March 31, 2023, in response to her having filed a workplace harassment complaint. The Board bifurcated the proceeding into liability and remedy phases.  

After 15 hearing days on liability plus two additional days on remedy (concluding January 7, 2026), the parties turned to the question of compensation. Ms. Braganza advised the Board that she did not seek reinstatement and instead sought monetary compensation. The parties agreed that her total annual compensation had been $106,000.00 ($8,833.33 per month). 

The Board’s Framework: Three Heads of Compensation 

The Board confirmed that in reprisal cases under section 50 of the OHSA, which incorporates section 96(4) of the Labour Relations Act, 1995, three categories of monetary compensation are available: 

• Direct wage loss – the income the applicant would have earned absent the reprisal;  

• Loss of reasonable expectation of continued employment – a forward-looking component reflecting the value of the employment relationship itself; and,  

• Compensation for injury to dignity and mental distress – a head reflecting the non-pecuniary harm of the reprisal. 

The Board emphasized the importance of the anti-reprisal remedy as a tool for protecting vulnerable employees, citing L & L McCaw Holdings Ltd. o/a Canadian Tire v. Chun Yin Bao, 2019 CanLII 64732 (ON LRB) and Sense Appeal Brands Inc., 2015 CanLII 49516 (ON LRB). These authorities stress that an effective remedy must make good on the statute’s promise that workers can exercise their OHSA rights without fear of economic retaliation. 

Mitigation: 700 Applications Over 34 Months 

By the time of the remedy hearing, Ms. Braganza had been unemployed for approximately 34 months. She testified that she had applied to roughly 700 employers, primarily through LinkedIn and some via Indeed, and produced 39 sample outreach letters in evidence. 

Relying on Red Deer College v. Michaels, 1975 CanLII 15 (SCC), the Board held that the burden to establish a failure to mitigate falls on the responding party. Randstad argued that many of Ms. Braganza’s applications were directed at unsuitable positions, but the Board found that Randstad had not met its evidentiary burden to prove any failure to mitigate. In the absence of persuasive evidence that the applicant could reasonably have avoided her loss, the Board declined to reduce the award on mitigation grounds. 

Rejection of Delay Arguments 

Randstad also argued that Ms. Braganza’s compensation should be reduced because she delayed filing her application (which was filed on November 6, 2023, roughly seven months after termination) and because the self-represented applicant contributed to hearing delays. 

The Board rejected both arguments. Citing Stringer v. Grand Tappatoo Resort, 2015 CanLII 26124 (ON LRB) and Brown v. Trelford Automobile Limited, 1991 CanLII 6022 (ON LRB)—which involved unexplained delays of 22 and 16 weeks, respectively—the Board noted that in the present case the parties had been engaged in good-faith settlement negotiations before the application was filed, providing adequate justification for the timeline. The Board likewise found no basis to penalize a self-represented litigant for procedural difficulties during the hearing. 

The Counterfactual Analysis: How Long Would She Have Stayed? 

The central issue at remedy was causation: “but for” the reprisal, how long would Ms. Braganza have remained employed at Randstad? This required the Board to engage in a hypothetical assessment of the counterfactual - what would have happened in the absence of the unlawful termination.

The Board adopted the framework from Shi v. Holcim Canada Inc., 2012 CanLII 59255 (ON LRB), in which the applicant was unemployed for 30 months by the time of the hearing, but the Board determined she likely would not have remained employed for the full period and awarded only nine months’ wages.   

Randstad pointed to a broader downsizing of its Recruitment & Integration Solutions (RIS) unit in 2023–2024, submitting a revenue/EBITDA/FTE document covering August 2021 through October 2024, and a list of 37 employees who left the RIS unit during that period (30 resignations and 7 involuntary departures, though at least one or two of the latter appeared to be performance-based rather than business-related). The evidence showed that FTEs in RIS decreased by approximately 30% over the period, although RIS remained modestly profitable throughout. 

The Board found this evidence inconclusive as to the precise timing at which Ms. Braganza would have been selected for layoff. Importantly, the liability decision had already found that Randstad failed to conduct an objective comparative analysis of employees before selecting Ms. Braganza for termination, and that she had been reassigned a low-performing book of business after returning from medical leave.  

Nevertheless, the Board concluded that it was more probable than not that Ms. Braganza would have been laid off when the RIS unit was ultimately disbanded in October 2024. Adding three months’ reasonable notice pay to that end date, the Board calculated the total wage-loss period as 22 months. 

The Award 

All told, the Board awarded Ms. Braganza a total of $195,833.26 comprised of:   

• Direct wage loss: 22 months × $8,833.33/month = $194,333.26. This covered the period from Ms. Braganza’s termination on March 31, 2023, through a hypothetical October 2024 RIS disbandment date, plus three months’ notice. 

• Loss of reasonable expectation of continued employment: Nil. The Board declined to make a separate award under this head because the wage-loss calculation already incorporated the October 2024 end date, effectively subsuming this component. 

• Injury to dignity and mental distress: $1,500.00. Citing Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 and Podobnik v. Society of St. Vincent de Paul Stores (Ottawa) Inc., 2016 CanLII 65109 (ON LRB), the Board made a modest award reflecting the emotional impact of the reprisal. 

Confidentiality of the Record 

In a companion ruling, the Board addressed confidentiality of the hearing record under the Tribunal Adjudicative Records Act, 2019. Applying the open court principle, the Board declined to seal the record, but ordered targeted redactions, such as the applicant’s home address and social insurance number. The Board established an “Employee Identification Protocol” and a “Client Identification Protocol” for substituting or redacting names of non-party individuals in various exhibits. Witness names and financial figures already discussed in the public liability decision remained in the public record. 

Key Takeaways for Employers 

A genuine downsizing can limit—but not eliminate—exposure

Randstad’s evidence of RIS unit disbandment in October 2024 reduced the potential wage-loss award from 34 months to 22 months, saving the employer roughly $106,000. The lesson: a well-documented restructuring rationale remains the most effective tool for capping damages after a reprisal finding, even if it cannot defeat the liability claim itself. 

Contemporaneous documentation is critical 

The Board noted the absence of an objective comparative analysis supporting the selection of Ms. Braganza for termination. Employers facing potential OHSA reprisal claims should maintain contemporaneous records of business rationale, selection criteria, and comparative assessments whenever making workforce reduction decisions. 

The mitigation burden is real and rests on the employer

Randstad could not persuade the Board that Ms. Braganza failed to mitigate merely by arguing that some of her 700 applications were directed at unsuitable roles. Employers relying on a mitigation defence must adduce specific, persuasive evidence—such as evidence of available comparable positions that the applicant ignored—rather than merely criticizing the applicant’s job search strategy. 

Delay arguments face a high threshold

Good-faith settlement discussions before filing may excuse apparent delay in commencing proceedings. Employers should not assume that the passage of time alone will reduce their exposure at remedy. 

The counterfactual “but for” analysis is fact-intensive 

Following the framework in Shi v. Holcim Canada, the Board will engage in a hypothetical assessment of how long employment would have continued. Employers defending reprisal remedy claims should be prepared to lead clear, well-organized evidence—including timelines, financial data, and specific staffing decisions—to anchor the Board’s counterfactual analysis. 

Self-represented litigants receive procedural latitude  

The Board will not penalize unrepresented applicants for hearing delays attributable to their unfamiliarity with tribunal processes. Respondent employers should not expect procedural arguments to reduce substantive awards. 

Conclusion 

Braganza v. Randstad Canada reinforces that OHSA reprisal findings carry significant financial consequences. At the same time, this decision demonstrates that employers who can point to genuine, documented business restructuring events may meaningfully limit their exposure at the remedy stage. The critical variable is evidence: employers must be prepared to prove, with contemporaneous and specific documentation, that the applicant’s employment would have ended for legitimate business reasons within a defined timeframe.