Increasingly individuals are seeking legal representation to
address hostile work environments. Employees claim they can no
longer work due to their employer's failure to prevent an
abusive workplace or the psychological harassment of a supervisor
or other employee. This alleged harassment is often not based on an
enumerated personal characteristic which would have given the
employee a human rights claim (e.g. race, sex, age, sexual
orientation, etc.), but rather is a personal attack on the
employee's character, skills or competence, work ethic, or job
From the employee's perspective such harassment may very
well be intolerable and deserve a remedy. From the employer's
perspective there is seldom an express intent to harass, but rather
a desire to motivate without mollycoddling the employee. Other
times employers explain the conduct as being normal workplace
banter, jokes, or innocent personality quirks.
In the past decade the issue of workplace environment has spread
from the courts to the legislature. In June 2004, the Province of
Quebec became the first Canadian jurisdiction to implement
anti-psychological harassment provisions in its employment
legislation: ss.81.18 to 81.20, An Act Respecting Labour
Relations, 2002, c. 80, s. 47.
Last year in July, British Columbia expanded the scope of the
Workers Compensation Act, RSBC 1996, c 492
("WCA") to include injuries "... predominantly
caused by a significant work-related stressor, including bullying
or harassment, or a cumulative series of significant work-related
stressors, arising out of and in the course of the worker's
This paper provides a brief overview of some of the potential
liability an employer could face as a result of psychological
harassment in the non-union workplace, and will examine:
claims in contract, and in particular, claims for constructive
claims in tort, and in particular the claim of tort in
intentional infliction of mental suffering; and
claims under statute, and in particular the availability of
workers' compensation benefits for stress leave, bullying, and
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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