New “Tort of Harassment” allows employees to sue for damages

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Recent ruling on harassment by the Ontario Superior Court is a wakeup call for employers

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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.

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 percent 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 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.
  • 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 fact, Quebec is the latest province to experience multiple allegations of sexual misconduct against two top celebrities leading to a massive public reaction and litigation against the alleged perpetrators and their employers.  

Nonprofit Employers: Protecting yourself 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. Become familiar with both your provincial and federal regulations and requirements.

Failure to meet criteria outlined by Ontario provincial legislation can now subject employers to claims for damages.

Protect yourself by first ensuring you are meeting the requirements set out by Bill 132 to develop:

  1. Policies
  2. A written program to identify how workplace harassment incidents will be investigated (a checklist of procedural requirements will be provided in the upcoming webinar)
  3. Train all employees on their rights and responsibilities
  4. Train all supervisors on their rights and responsibilities

But beyond the legislation we can all agree that no one should ever be afraid to go to work. By building an organizational culture of respect in your Not for Profit you can prevent and mitigate against harassment and potential liability. Join us for our upcoming webinar to learn how.

Donna Marshall, M.A., is the co-founder of BizLife Solutions. This article was first published in full by the HR Professional Magazine in September 2017.

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