Employers are facing increasing costs as a result of incidents
of bullying and harassment in the workplace, and must be aware of
the multiple avenues from which liability can arise. British
Columbia's Human Rights Code prohibits discrimination
against a person regarding employment on a number of grounds, and
provides the Human Rights Tribunal with the authority to make
financial awards for injury to a complainant's "dignity,
feelings and self-respect". In addition, British
Columbia's Workers Compensation Act extends benefits
to employees who suffer from a mental disorder caused by a
significant work-related stressor, including bullying and
harassment. In Ontario, the courts have also shown a willingness to
award increased damages where an employee's termination
involves an aspect of harassment, including exercising their
authority to award human rights damages.
In a 2013 human rights decision, Kelly v University of
British Columbia ("Kelly"), the B.C. Human
Rights Tribunal more than doubled the previous high-water mark of
$35,000 for injuries to a complainant's dignity when it awarded
$75,000 to a UBC medical student with a mental disability who had
been terminated from the school's medical residency program. In
2015, the British Columbia Supreme Court overturned the
Tribunal's decision, finding that there was no evidence or
principle that supported more than doubling the previous high for a
similar injury. However, the Court did refrain from stating that
the Tribunal could not award more than $35,000 provided the award
was supported by the evidence.
In a 2015 case, Silvera v Olympia Jewellery Corporation
("Silvera" ), the Ontario Superior Court awarded
a retail employee more than $312,000 in damages. Before being
wrongfully terminated, the employee had been subjected to a series
of sexual assaults and incidents of sexual harassment committed by
her supervisor in the workplace. In addition to awarding
significant damages arising from the dismissal, the Court awarded
separate damages against the supervisor and the employer as a
result of the supervisor's tortious conduct, breach of his
fiduciary duty and human rights violations. In particular, the
court fixed general damages for the supervisor's conduct at
$90,000, punitive damages at $10,000, damages under Ontario's
Human Rights Code at $30,000, and damages for loss of
earning capacity at $33,924.75 as a result of the employee's
severe discomfort with working with older men moving forward.
Silvera and Kelly evidence the formidable
damage awards that courts and tribunals are empowered to make in
order to ensure that workplaces are free from bullying and
harassment. Proactive employers should have clear and comprehensive
bullying and harassment policies that define unacceptable forms of
behaviour, and outline procedures for training, reporting and
investigating. Training of employees and managers in prevention and
dealing with harassment is also advisable. Through the use and
application of such policies, employers can ensure that harassment
of any kind is not tolerated at the workplace and hopefully avoid
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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