Can employees sue for harassment?

By now, most employees understand that they have a right to make a complaint of harassment to their employer, and employers are generally aware that they need to investigate such complaints pursuant to the Occupational Health and Safety Act (OHSA).

However, can an employee also sue their employer for harassment? The answer is not straightforward, but a recent case has opened the door to claims of harassment for cyberbullying.

Pursuing damages for harassment through the courts

We previously wrote about the case of Merrifield v Canada (Attorney General) which dealt with the rise, and fall, of the common law tort of harassment. The plaintiff in this case alleged that he had been subjected to bullying and harassment from his superiors over a period of more than seven years.

In early 2017, the Ontario Superior Court of Justice determined that the employer’s conduct in this case warranted the creation of a new independent tort of harassment, which it found the employer had breached. As a result, the employee was awarded over $100,000 in damages.

However, two years later, the Ontario Court of Appeal set aside the trial judgment, finding that there was no legal authority supporting the recognition of the tort of harassment. The court also noted that there were existing legal remedies available already to deal with conduct constituting harassment.

Although employees cannot sue for “harassment” as that tort was conceptualized in Merrifield, there are indeed other causes of action available to them. As the court pointed out, this includes the tort of intentional infliction of mental suffering, which requires an employee to prove that the conduct of the employer was:

• flagrant and outrageous
• calculated to harm the plaintiff
• must have caused the plaintiff to suffer a visible and provable illness.

An employee must be able to demonstrate that the defendant intended to produce the kind of harm that occurred. It is not sufficient that the defendant “ought to have known” that harm would occur. The second part of this test can make it challenging for an employee to establish the tort, but it is certainly possible.

See, for example, Boucher v Wal-Mart Canada Corp., where the Ontario Court of Appeal upheld a $100,000 damage award against an employee’s former supervisor who bullied and harassed her over a six-month period.

Employees may also be entitled to additional damages for harassment under the headings of bad faith or moral damages, aggravated damages, and punitive damages. However, these are not stand-alone causes of action and can only be plead as additional damages arising from other unlawful conduct (for example, wrongful dismissal).

In Bassanese v. German Canadian News Company Limited et al., an employee was awarded $50,000 in aggravated damages, in addition to damages for wrongful dismissal, arising from the employer’s failure to investigate her allegations of harassment in the workplace.

A new tort of harassment?

On Jan. 28, 2021, the Ontario Superior Court of Justice released its decision in Caplan v Atlas recognizing a new tort of “harassment in internet communications.” The decision arises from four actions brought by the victims of one individual who engaged in a years-long, vicious campaign of cyber-stalking and bullying against them as well as their friends, family members and associates.

In the face of such extreme behaviour, the court found that no existing common law torts were sufficient to address the conduct and the harm suffered by the plaintiffs. As a result, it developed the tort of harassment of internet communications, which will be available where 1) the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, 2) with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and 3) the plaintiff suffers such harm.

Although this tort is now available for employees who have experienced cyberbullying in the workplace, Caplan sets a very high bar for establishing the tort.

Other avenues

There are a number of other avenues, set out below, through which employees may pursue claims relating to harassment in the workplace.

Ministry of Labour: Employees can submit a complaint to the Ministry of Labour in situations where they reported harassment to their employer and an investigation appropriate in the circumstances was not conducted (or not conducted properly).

A Ministry of Labour inspector has the power to order an employer to conduct an investigation appropriate in the circumstances, carried out by “an impartial person” at the expense of the employer. However, they do not have the ability to award “damages” to an employee whose employer has failed to properly investigate.

Ontario Labour Relations Board: Employees who believe they have been dismissed or punished for exercising their rights under the OHSA, including making a complaint of harassment, can file a reprisal complaint with the Ontario Labour Relations Board (OLCR). The OLRB does have the ability to award damages to an employee for reprisal, in addition to other remedies, including reinstatement of an employee. However, any such damages would not be payable because of the harassment, but due to the act of reprisal against the employee.

The Workplace Safety and Insurance Board (WSIB): Employees may be entitled to benefits pursuant to the Workplace Safety and Insurance Act, 1997 as a result of “chronic or traumatic mental stress arising out of and in the course of the worker’s employment.” To be entitled to benefits, the WSIB must be satisfied that a substantial work-related stressor (including workplace harassment), a) arose out of and in the course of the worker’s employment, and b) was the predominant cause of an appropriately diagnosed mental stress injury.

The Human Rights Tribunal of Ontario (HRTO): Where the harassment in question is based on an employee’s membership within one of the protected grounds under the Ontario Human Rights Code, an employee may pursue a human rights complaint against the employer, and potentially against the individual harasser(s). The HRTO, like the OLRB, has the ability to award damages to an employee who has experienced discriminatory harassment, among other remedies, including reinstatement. However, this recourse is only available for employees experiencing harassment which violates the code.

Takeaways

There are many ways in which an employee can seek remedies against their employer, or their harassers, outside of the workplace investigation process required by the OHSA. Employers faced with a complaint of workplace harassment should ensure they take such allegations seriously and comply with their obligations at law, as failure to do so can lead to significant consequences.