As we wrote about back in April, the Alberta Court of King’s Bench confirmed this year that the tort of harassment exists as a free-standing cause of action in the case of Alberta Health Services v Johnston. Although this case did not arise in the employment context, it lays the foundation for employees who experience bullying and harassment to pursue damages against their alleged harasser and, potentially, their employer.
In Ontario, however, the Court of Appeal has taken the position that no such tort exists. While the Superior Court of Justice has since recognized the discrete tort of “internet harassment”, for the moment it remains the case that employees in Ontario who experience workplace bullying cannot generally sue their employer directly for “harassment”. However, this does not mean that employees who experience this mistreatment are without recourse. In this blog post, we’ll explore the various avenues available to employees dealing with workplace harassment in this jurisdiction, even when the recognized “tort of harassment” remains elusive.
Harassment as Discrimination
Where the harassment of an employee is discriminatory in nature, meaning that it arises from or is based on an employee’s membership in a ground protected by the Ontario Human Rights Code (such as sex, race, gender identity or expression, or sexual orientation), the employee may file an Application with the Human Rights Tribunal of Ontario (the “HRTO“).
If the HRTO concludes that discriminatory harassment has occurred, it has the power to issue a number of remedies, including:
- monetary remedies such as damages for:
- injury to dignity, feelings, and self-respect, and
- lost wages, and
- non-monetary remedies such as
- reinstatement, or
- ordering an employer to institute policies or complete workplace training.
Harassment as Breach of Health and Safety Requirements
Employers in Ontario have specific obligations with respect to addressing workplace harassment, including the requirement to prepare and maintain policies with respect to workplace harassment, provide training to workers, and to conduct an investigation appropriate in the circumstances when it becomes aware of an incident or complaint of workplace harassment.
Where an employee makes a complaint of workplace harassment and the employer fails to investigate, the employee can inform the Ministry of Labour, which is responsible for enforcing the Occupational Health and Safety Act (the “OHSA“), and they can have one of their inspectors investigate. If the inspector agrees that the employer has not complied with their obligations, they can order the employer to conduct a proper investigation. However, they cannot order compensation or other individual remedies to employees.
Where an employee is dismissed or otherwise penalized for making a complaint of harassment, they may have a claim against their employer for reprisal under the OHSA directly to the Ontario Labour Relations Board (the “OLRB“). Like the HRTO, the OLRB has the power to order an employee to be reinstated to their position, and to order monetary remedies including damages for loss of employment in lieu of reinstatement and for lost wages.
Harassment as Constructive Dismissal
A constructive dismissal generally occurs when an employer makes a unilateral and substantial change to a fundamental term or condition of an employee’s employment, such as a substantial pay decrease. However, constructive dismissal can also occur where harassment or abusive conduct has rendered the workplace so toxic that no reasonable person would expect the employee to remain in that environment. If constructive dismissal is established, an employee will be entitled to damages in lieu of notice as if their employment had been terminated.
Harassment as Intentional Infliction of Mental Suffering
One of the reasons the Court of Appeal declined to recognize the tort of harassment in Ontario is because of the existence of the tort of intentional infliction of mental suffering, under which many claims for harassment are pursued. The challenge for employees is that the three-part test required to establish this tort can be very difficult to meet. To establish this tort, an employee must be able to demonstrate that:
- the conduct of the harasser was flagrant or outrageous,
- there was an intention by the harasser to cause harm to the employee, and
- the employee suffered a visible or provable illness as a result.
Where all three elements are met, an employee can be awarded significant damages, such as in Boucher v Wal-Mart, where the employee was awarded $100,000.00 under this tort, which was upheld on appeal.
Harassment as Moral, Aggravated and Punitive Damages
Where an employee has been the victim of harassment, it may be possible for an employer to claim various additional damages, such as:
- moral or bad faith damages,
- aggravated damages, or
- punitive damages.
These types of damages cannot be claimed on their own, but can be added to an existing claim (such as a claim for wrongful dismissal or constructive dismissal), and potentially significantly increase the damage award payable to the employee. Referring to Boucher again as an example, the employee was awarded $200,000.00 in aggravated damages and $110,000.00 in punitive damages, in addition to damages for constructive dismissal.
Take-aways for Employers and Employees
Although the tort of harassment has not been recognized in Ontario, employees still have several means by which to pursue remedies against an employer who engages in workplace bullying. In some circumstances, this can result in significant damage awards over and above what an employee would otherwise be entitled to at law. However, employees should recognize that these claims can be challenging to establish.
If you believe you are being harassed at work, please contact us so that we can assist you to determine the best way to proceed. If you are an employer, there are steps you can take to protect yourself against claims related to harassment, including through the establishment of clear policies and providing training to your staff, both of which we can assist you with.