Recent ruling on harassment by the Ontario Superior Court is a wakeup call for employers
By Donna Marshall, M.A.
Employers in Ontario are at greater risk of litigation from employees who have been harassed in their workplace. Referred to as the “tort of harassment” and “harassment as an independent cause of action,” the Superior Court ruling makes it easier for employees to sue their employer for damages resulting from harassment.
What is tort law?
Tort law provides compensation to individuals who have been injured (including mental injury) by the wrongdoing of others, whether through negligence or intention.
“While contract law deals with governing contracts between parties, tort law is concerned with situations where one person harms another,” said Judy Hamilton, LL.B., associate at Friedman Law Professional Corporation in Toronto.
There is ever increasing case law to support the claim that workplace harassment harms individuals by causing mental injury. One such case was Boucher v. Wal-Mart Canada Corp., where the court found the plaintiff’s supervisor, “…belittled, humiliated and demeaned [Boucher] the plaintiff continuously and unrelentingly, often in front of co-workers, for nearly six months.” [The judge determined that] this constituted flagrant and outrageous conduct. The defendant was awarded $410,000.
“Most tort actions have to do with one party breaching a duty to another person because of the relationship between the parties,” said Hamilton. In the workplace, employers have a duty to protect employees from injury, including mental injury caused by acts of harassment.
The ruling on which the new “tort of harassment” is based concerned an RCMP officer (Merrifield v. The Attorney General, 2017) who sued his employer for wide ranging acts of harassment perpetrated over an extended period of time. In her ruling of February 2017, the Honourable Justice Mary E. Vallee of the Ontario Superior Court of Justice determined that the tort of harassment does exist and that it is recognized as a cause of action in Ontario. The court awarded Merrifield general damages against his employer for harassment and intentional infliction of mental suffering in the amount of $100,000.
The link between harassment and mental injury
In her book, Stalking the Soul, Dr. Marie-France Hirigoyen, a French psychiatrist specializing in the psychology of harassment, wrote, “Harassment is violence against the soul…Physical violence can be testified to by outside evidence: eyewitness, police and medical reports. With emotional abuse, there is no proof. It’s a clean violence. No one sees anything.”
These acts of “clean violence” are frequently the complaint of victims of workplace harassment. Mira*, a manager at a financial institution, had a 10-year history of exceptional performance, until a new leader was assigned to her group. At a team meeting, he accused Mira of providing “sub-standard” work and reports. She felt shocked and humiliated. In private when she challenged his demeaning approach and asked him to provide specifics, he refused to do so, saying, “Just do your job and shut up. Your performance is so bad, you should think about resigning.”
In private meetings, he harshly micromanaged her and criticized virtually everything she did. In public, he praised her. Mira was experiencing “emotional abuse with no proof; clean violence where no one sees anything.”
Mira recorded all the incidents with times, dates and witnesses, and filed a formal complaint of harassment with her employer. The employer told Mira that when they talked to her director, he denied everything, and that she needed to find a way to work effectively with him.
Dr. Stephanie Bot is chief psychologist at Dr. Stephanie Bot and Associates and president of BizLife Solutions, a Toronto-based boutique workplace harassment resource and consulting firm.
“The type of harassment Mira experienced is the covert subtle abuse that erodes an employee’s sense of self, competency and resilience,” said Bot.
“The organization and the bully-boss carry on and these employees become casualties of a workplace that does not support the psychological safety and mental health of its workers.”
– Dr. Stephanie Bot
In her private practice, Bot and her associates treat individuals who have been bullied and harassed in their workplace.
“I frequently diagnose disorders that include PTSD, anxiety disorders and depression where individuals develop a dread of work and a sense of being trapped between wanting to sustain their employment while their mental injury prevents them from being able to do so.”
Bot says that when a person is unable to advocate for themselves due to the circumstances of their employment, they will develop symptoms of both physical and mental injury due to ongoing stress that forces them out of the workplace.
“The organization and the bully-boss carry on and these employees become casualties of a workplace that does not support the psychological safety and mental health of its workers,” she said.
Awards for mental injury due to harassment
According to a report by the Mental Health Commission of Canada, entitled Stress at Work, Mental Injury and the Law in Canada, awards for damages caused by “mental injury” in the workplace have soared 700 per cent since 2005. Legislation in all provinces is becoming more stringent and awards for damages are expected to escalate:
In British Columbia, every employment contract states that employers must ensure that employees work in a workplace devoid of bullying.
In Quebec, employers must establish procedures regarding how they will deal with complaints and provide training for workers to help them understand what constitutes vexatious behaviour in the workplace.
In Newfoundland and Labrador, employers are responsible for ensuring a harassment-free workplace and must foster safety in the workplace through harassment prevention, investigation and prompt resolution.
Failure to meet these criteria can now subject employers to claims for damages.
Independent cause of action based on harassment
“There is an independent cause of action for every act of harm done by one person to another that leads to damages,” said Hamilton. Based on the scenario of Mira, Hamilton says there are several causes of action in play:
The employee is suffering from workplace harassment. If the employee ends up resigning from employment due to the mental health issues and other personal injuries that the employee has suffered, the employee will have an action against the employer from wrongful, or constructive, dismissal.
The court will consider this claim in the context of the harassment that was taking place and can award various additional damages due to the aggravating factors of workplace harassment.
In addition to the tort action, there will also be statutory remedies available to the employee under the Ontario Occupational Health and Safety Act against the employer for failing to maintain a harassment free workplace.
The Ministry of Labour can also conduct an independent investigation of any breaches of the Employment Standards Act, although generally if the employee retains counsel they will hold off on the investigation pending any resolution between the parties.
The employee would have an independent cause of action against the supervisor, who was in a position of authority over the employee and has intentionally caused harm to the employee. The employee can sue the supervisor for such torts as intentional infliction of mental suffering (being in a position to cause someone harm, and doing so) as well as interference with contractual relations (trying to get the employee to resign). Generally, the employee will bring an action against the employer and the supervisor in the same action because it involves the same set of facts.
The judge or jury will be able to award different types of damages arising from the various independent causes of action against the employer and the supervisor, and hold one or both of the parties responsible for the damages, if proven.
In addition, the employer is responsible in law for the actions of its employee, the supervisor, while the supervisor is acting in the course of employment.
Protecting against claims of “harassment as a cause of action”
As an employer, it is your obligation under the law to protect your employees from harassment. But beyond that, it’s simply the right thing to do. No one should ever be afraid to go to work. By building a culture of respect you can prevent and mitigate against harassment and potential liability.
How do you build a culture of respect and psychological safety against mental injury? It doesn’t have to be a daunting task. Bot developed a program called HEART: Harassment Education Advisory Response Team, based on the reality that harassment breeds where power differentials are abused. In 78 per cent of harassment cases, a senior person is the perpetrator to someone junior. Generally the harasser is not held accountable and the bullied employee has nowhere to turn that provides a safe harbor for reporting and resolution.
Bot recommends organizations do the following in order to create a respectful and psychologically safe workplace:
Implement the Occupational Health and Safety Act (OHSA): Bill 132 including administering a psychologically sound “written program;”
Train a peer response team to address reports of harassment such as a HEART;
Educate leaders on mental health and psychological safety;
Train leaders and employees on how to communicate respectfully and effectively;
Begin implementing the Canadian National Standard for Psychological Health and Safety.
Employers who fail to comply with the Occupational Health and Safety Act or other provincial legislation can be fined. In addition, employees may seek compensation as a result of workplace harassment by relying on the tort of harassment. But beyond that, building a work culture of respect and safety makes the workplace a much happier place to be.
Donna Marshall, M.A., is the CEO of BizLife Solutions.