Court of Appeal Strikes Down Tort of Harassment
In Merrifield v. Canada (Attorney General), 2019 ONCA 205, the Ontario Court of Appeal ruled that there is no such thing as the “tort of harassment.” This was a newly developed cause of action that allowed employees to sue employers for harassment. The test for harassment under this tort was:
Was the conduct of the Employer toward the Employee outrageous?
Did the Employer intend to cause emotional stress or did they have a reckless disregard for causing the Employee to suffer from emotional stress?
Did the Employee suffer from severe or extreme emotional distress?
Was the outrageous conduct of the Employer the actual and proximate cause of the emotional distress?
If an employee could satisfy all of the above, they would be successful in suing their employer for harassment. In the trial decision previous to the Ontario Court of Appeal, the trial judge awarded $100,000 for harassment and another related tort, the tort of intentional infliction of mental suffering (IIMS).
The Court of Appeal ruled that the law did not need to recognize this new tort of harassment because it was much too similar to the already existing tort of IIMS. The test for IIMS is:
Was the Employer’s conduct flagrant and outrageous?
Was the Employer’s conduct calculated to harm the employee? and
Did the Employer’s conduct cause the employee to suffer a visible and provable illness?
As one can see, the tests for both torts are quite similar, with IIMS being more difficult for an employee to prove. When the new tort of harassment was introduced, it was hoped that employees could have more remedies at the court for harassment. For now, employees who want to sue their employer for harassment must meet the higher test for IIMS, or resort to other legal means.
What Can Employees Do When They’re Being Harassed?
There are still several ways for employees to protect themselves in the workplace if they are being harassed. Here are a couple:
Report Harassment to HR or a Supervisor
The Ontario Occupational Health and Safety Act (OHSA) provides that all employers must have a harassment policy in place. When an employee reports harassment, employers must conduct an investigation that is appropriate in the circumstances. This is part of an employer’s obligation to provide a safe working environment to all employees.
Report Harassment to the Ministry of Labour
If an employer refuses to conduct a workplace investigation, or it does not conduct an appropriate investigation, employees can report the employer’s failure to the Ministry of Labour (MOL). The MOL will likely send an Employment Standards inspector to the employer’s premises and either order the employer to conduct an investigation, or have the employer pay for an independent investigator. The Ministry of Labour can be quite helpful, but employees should be careful in hoping that MOL will answer all their problems because they only deal with certain things.
Sue Their Employer at the Labour Board
When an employer punishes, retaliates, or reprises against an employee for reporting harassment, an employee can sue their employer by filing an application at the Ontario Labour Relations Board. The Occupational Health and Safety Act prohibits employers from punishing employees for reporting harassment. If an employer terminates an employee because they reported harassment, the employee could be awarded substantial money, including severance, lost wages, loss of the job, and reinstatement.
However, the Labour Board will not examine whether harassment took place. The Labour Board will only determine whether the employer took into account an employee reporting harassment when it decided to dismiss the employee.
Sue Their Employer at the Ontario Human Rights Tribunal
If the harassment is based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability, the employee can sue the employer if the employer failed to take proper steps to remedy the harassment, such as investigating the harassment.
Quit and Claim Constructive Dismissal
If harassed, employees can quit their jobs and claim constructive dismissal, which allow them to collect severance. When employees usually resign, they would not be entitled to any type of severance package. However, when an employer unilaterally alters substantive working conditions or subjects an employee to a toxic working environment, the employee may quit and claim severance pay because the employer effectively terminated their employment by their actions. See this guide in how to calculate severance.
If you are an employer or employee who has questions about workplace harassment, please contact Toronto employment lawyer Jason Wong at 647-242-5961 or jason@wongemploymentlaw.com