Workplace harassment: Understanding an employer’s risks and obligations

#MeToo movement heightens public awareness
By Lisa Bolton and Gerald Griffiths
|Canadian HR Reporter|Last Updated: 09/14/2018

Consider this:

•             40 per cent of Canadian workers experience bullying in the workplace on a weekly basis, according to a 2006 sudy in the European Journal of Work and Organizational Psychology.

•             28 per cent of Canadians have experienced workplace sexual harassment, according to a 2014 report from the Angus Reid Institute.

•             17 per cent of all incidents of violent victimization in Canada occur in the workplace, according to a 2007 report from Statistics Canada.

Gone are the days of turning a blind eye to bullying and workplace harassment, whether sexual, verbal or psychological. Government initiatives and the #MeToo movement have heightened public awareness of these issues.

Now, more than ever, an employer must take seriously its obligation to respond to and investigate an allegation of workplace harassment.

An employer that fails or refuses to get on-board does so at its peril, risking public embarrassment and employee discontent, not to mention a hefty regulatory fine and an award of damages from a court or adjudicator.

To help employers navigate this burgeoning area of workplace management, we’ve identified relevant harassment legislation across Canada and recent examples of the financial implications of disregarding workplace harassment.

Harassment legislation across Canada

British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec and the Northwest Territories all have legislation aimed at addressing (to varying degrees) workplace harassment and bullying. Prince Edward Island and New Brunswick are both in the process of developing workplace harassment legislation.

In the federal sphere, while existing workplace violence legislation has historically been applied to workplace harassment causing psychological injury, new legislation expected to come into force later this year expressly requires an employer to take proactive measures to protect against harassment, including sexual harassment, and to investigate and respond to such complaints.

Where an employer is statutorily obligated to enact measures to protect against harassment, failure to do so can result in high sanctions and fines. In Ontario, for example, as of Dec. 14, 2017, the maximum fine for an offence under the Occupational Health and Safety Act increased from $25,000 to $100,000 for an individual or unincorporated business, and from $500,000 to $1.5 million for a corporation. 

In the case of an investigation gone wrong, an employer may also be ordered to have an investigation conducted by an independent third party at the employer’s cost. 

In addition to legislation directed at harassment, every Canadian jurisdiction has human rights legislation prohibiting harassment on the basis of protected grounds (such as race, sex, sexual orientation, disability, religion or family status).

An employer’s failure to take proactive steps to prevent and respond to human rights-based harassment can result in significant sanctions such as a damage award and a range of public interest remedies aimed at reducing future incidents.

In the recent case of A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107, the Human Rights Tribunal of Ontario awarded the applicant $200,000 in general damages for injury to dignity, feelings and self-respect. She had been subjected to egregious and persistent sexual harassment and assault over a decade, during which time Singer was her employer and landlord. The impugned behaviour included:

•             grabbing, licking and kissing the applicant in the workplace

•             rubbing himself against the applicant and attempting to pull her pants down

•             making comments to the applicant about her chest size

•             forcing the applicant to perform oral sex and sexually assaulting the applicant in her apartment

While the circumstances of this case were extreme, this damage award is one of the highest sexual harassment awards in Canada.

Civil remedies for workplace harassment

In addition to legislative sanctions, courts and arbitrators can impose considerable civil liability on an employer that fails to have and appropriately implement policies and protocols to respond to a complaint of violence or harassment. The case of Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 is a good example of how an employer’s failure to appropriately investigate an allegation of harassment can be a costly mistake.

Boucher, an assistant manager at a Walmart in Windsor, Ont., was the subject of workplace harassment by her immediate supervisor. She was consistently and increasingly belittled, humiliated and demeaned, often in front of co-workers. When she complained to Walmart’s senior management, they undertook to investigate her complaints, but did so only half-heartedly. The investigator found the complaints unsubstantiated following which, after another occurrence of public humiliation, Boucher quit and sued for constructive dismissal.

A jury found Boucher to have been constructively dismissed and, in addition to her entitlements under her employment agreement, awarded $1,200,000 in aggravated and punitive damages against Walmart, as well as $250,000 against Boucher’s supervisor for intentional infliction of mental suffering and punitive damages. The Court of Appeal reduced the punitive award against Walmart from $1,000,000 to $100,000, and against the supervisor from $150,000 to $10,000. Still, these awards now rank among the highest in Canadian history for employer misconduct of this nature.

Ontario recognizes tort of harassment

Historically, courts only awarded damages for an employer’s failure to appropriately address workplace harassment where there was also an underlying claim of wrongful or constructive dismissal. However, recently, the Ontario Superior Court of Justice in Merrifield v. The Attorney General, 2017 ONSC 1333 recognized the existence of the tort of harassment. Now, an Ontario employee may file a claim seeking damages for harassment independent of any other claim.

Peter Merrifield was an RCMP officer who alleged he was constructively dismissed and harassed over a prolonged period of time by the senior officers within the force. He claimed that, after deciding to run for political office, he was targeted by his superiors who damaged his reputation through baseless allegations, including of criminal misconduct. Merrifield alleged this ongoing negative treatment impeded his career advancement and caused him extreme emotional distress and depression.

The court held Merrifield could not claim damages for constructive dismissal as his relationship with the RCMP arose by virtue of statute, not contract — however, he could bring a claim for the tort of harassment. To this end, the court identified a four-part test for establishing this cause of action:

1.Was the defendant’s conduct toward the plaintiff outrageous?

2.Did the defendant intend to cause emotional stress to the plaintiff or did the defendant have a reckless disregard for causing the plaintiff to suffer emotional stress?

3.Did the plaintiff suffer from severe or extreme emotional distress?

4.Was the defendant’s outrageous conduct the actual and proximate cause of the emotional distress?

The court was satisfied Merrifield had satisfied all four parts of the test and awarded him damages of $100,000 for harassment and the intentional infliction of mental suffering.

It remains to be seen whether courts in other jurisdictions will also recognize the tort of harassment. However, employers across the country should be prepared for this possibility and the resulting increase in civil claims for workplace harassment.

Lessons for employers

As an employer, you may not always be able to prevent workplace harassment. However, you can take proactive steps to minimize risk and, if necessary, appropriately respond. Consider the following best practices:

•             Have a workplace violence and harassment policy: Ensure it is compliant with all applicable legislation. Train employees and management on its content. Enforce it consistently and transparently.

•             Investigate: An investigation is critical and in some cases mandated by law. This is not the time to take shortcuts or ignore the problem.

•             Offer support: Where appropriate, offer support to an alleged victim; this can help avoid or reduce liability.

•             Mediate and de-escalate: Where appropriate, make efforts to mediate and de-escalate animosity among workplace parties, particularly if they will work together in the future.

•             Consult with counsel: Some situations are more complex and sensitive than others. If you think you may be in over your head, or want to bounce an idea off of someone knowledgeable but neutral, consider early consultation with employment counsel experienced in the intricacies of workplace harassment.

Lisa Bolton and Gerald Griffiths are lawyers at Sherrard Kuzz in Toronto, an employment and labour law firm representing management. They can be reached at (416) 603-0700 (main), (416) 420-0738 (24-hour) or by visiting www.sherrardkuzz.com.

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