‘Many employers underestimate how quickly repeated conduct can add up to a poisoned environment’: employment lawyer explains importance of early intervention and duty to respond
A recent Ontario Human Rights Tribunal (HRTO) decision is a reminder to Canadian employers that repeated behaviour – even over a brief period – can transform a workplace into one that is legally “poisoned,” with significant consequences under human rights law.
The decision, Cloutier v. Back Country Tours Inc., saw an employee of under a month being paid $32,500 in damages for injury to dignity, feelings and self-respect.
According to Chris Achkar of Achkar Law in Toronto, rather than looking to workplace policies or regulations to mitigate legal risks, employers should be looking at management practices for gaps in employee compliance.
“It's less about] gaps in regulations and the law, and more a gap in skill set of managers, HR folks and employers about how to deal with bullying and harassment,” he says.
“Many employers still underestimate how quickly repeated conduct can add up to a poisoned environment in the eyes of a tribunal or court.”
What courts look for in a poisoned workplace
The HRTO in Cloutier leaned on the Ontario Court of Appeal’s guidance in General Motors of Canada Limited v. Johnson that a poisoned work environment requires persistent or repeated “serious wrongful behaviour sufficient to create a hostile or intolerable work environment.”
The conduct does not need to be violent or overtly criminal, that decision outlined. In Cloutier, it was enough that the comments and actions “collectively suggest” an attempt to “groom” the employee by her boss, and that they were tied to the worker’s sex and position as a young woman.
Achkar says the distinction between one-off conflict and a pattern is critical.
“One-off incidents of bullying and harassment or an argument of some sort doesn't necessarily lead to a work environment that is poisoned at its core,” he explains.
“But repeated incidents, even if those happen over one day, even if they happen over two days, if it is sort of a prolonged effect … if it festers and it creates more incidents tied to it than an employee may be in a situation where they feel that they are just not welcome at the workplace anymore.”
Employers often focus on individual flare‑ups rather than the way comments and conduct accumulate, he adds. Over time, that can shift an employee’s experience from ordinary disagreement into ongoing harassment.
Early intervention and culture management
The Cloutier decision emphasizes the importance of evidence, and how quickly matters can escalate when early warning signs are ignored. Within roughly a month, the applicant had experienced a cluster of incidents that the tribunal viewed as a sustained pattern of harassment and grooming, culminating in a resignation and a successful human rights claim.
Under Ontario law, a poisoned environment can also be grounds for a constructive dismissal claim – Achkar says the goal for employers should be to address issues before they ever reach that stage: “Simply being careful of the culture and addressing things as early as possible and not letting things fester.”
The way leaders respond to complaints impacts company culture, which in turn can affect legal risks of harassment claims, he says.
“They should always assume that employees are taking notes, even recording some meetings, and should make sure that they don't let anyone think that complaints are not being taken seriously."
Employers should also not assume that they hold all the information, Achkar says: “Employees talk, and they have friends in other departments... So, there's a very high chance that other employees have heard about certain complaints before management has heard of them.”
Ignored complaints and the duty to respond
Under Ontario’s Human Rights Code, employers can be liable not only for their own discriminatory conduct but also for condoning or failing to address harassment that creates discriminatory conditions of employment.
Achkar says he frequently sees employers hesitate to fully investigate complaints.
“Many times, during litigation, we find out that employers would rather turn a blind eye rather than fully investigate and know the extent of issues,” he says.
“Knowledge is extremely important. And just pretending that you didn't know is not going to get you out of figuring out solutions.”
Many employees don't share complaints, even when they go through bullying and harassment, says Achkar.
“Some may share some stuff but be reluctant on what they share and the extent to which they share. So, not being inviting and welcoming to people who have these complaints is one of the biggest mistakes that I see.”
This is particularly true for when high-status employees are the perpetrators of misconduct, Achkar adds, and is an area where employers need to be especially proactive in ensuring employees know how to lodge harassment complaints regardless of who is involved.
It can also influence how arbitrators decide on damages.
“Once there is a power imbalance, that's a bit of a checkmark that just doesn't go away,” he says.
“The higher someone is in a position, the more authority they have over that person, the more decision-making powers they have when it comes to firing them, promoting them – those will make a big difference.”
