Canada: Workplace Sexual Harassment Is Not An Independent Tort In Ontario

Many employees have been troubled to hear that sexual harassment is not an independent tort in Ontario. Recently, in Incognito v. Skyservice Business Aviation Inc., 2022 ONSC 1795 ("Incognito"), the court struck a Plaintiff employee's claim for sexual harassment against her employer for just this reason. While it may sound like good news for employers, it does not mean that employers will not face such claims, it only impacts how and where those claims will be faced.

In the Incognito case, the Defendant employer moved under Rule 21.01(1)(b) of the Rules of Civil Procedure for an order striking out all allegations against it (Skyservice) in the Plaintiff's Fresh as Amended Statement of Claim with respect to vicarious liability for sexual harassment. The Defendant employer argued that the allegations should be struck as they did not disclose a reasonable cause of action. While the Plaintiff's claim also named the individual Vice-President of Sales at Skyservice as a Defendant, this motion decision only considers the employee's claim for sexual harassment against the employer. In the decision, Justice Vermette undertook a historical review of the case law. In summary, past cases have decided that sexual harassment is considered discriminatory conduct under the Ontario Human Rights Code ("Code"). As such, sexual harassment is most properly an issue that should be brought to the Human Rights Tribunal of Ontario ("HRTO"), not a common law court.

Past cases have explained the rationale for this conclusion. For example, in Honda Canada Inc. v. Keays, 2008 SCC 39 at para. 63, the Supreme Court referred to its decision in Seneca College v. Bhadauria 1981 CanLII 29 (SCC), and stated that, in Bhadauria, "this Court clearly articulated that a plaintiff is precluded from pursuing a common law remedy when human rights legislation contains a comprehensive enforcement scheme for violations of its substantive terms". Therefore, in the normal course, a complaint of sexual harassment is properly within the purview of the Code, and the expertise of the HRTO to adjudicate as there is a comprehensive enforcement scheme in the Code.

Of course, an important exception to this rule is found in Section 46.1 of the Code. That section permits a plaintiff to commence civil proceedings (i.e. a lawsuit in the common law courts) with respect to a breach of the Code where the claim is tied to a non-Code cause of action. This is why, for example, workplace sexual harassment claims can proceed in the courts when they are made in the context of a wrongful dismissal suit. If the employee does not claim for wrongful dismissal or some other claim against the employer, then the 'standalone' claim for sexual harassment will not be permitted to proceed in the common law court. An employee will be required to bring their standalone sexual harassment claim to the HRTO instead, which can have certain disadvantages. For example, court proceedings generally have more stringent procedural rules and protections as compared to the HRTO. A claimant is also able to seek reimbursement for some of their legal fees in court, unlike the HRTO which generally does not have jurisdiction to compensate a complainant for the legal fees they incur. While the HRTO commonly deals with self-represented litigants, it can be confusing and difficult to navigate the process in the HRTO or the courts without a lawyer.

All of this has implications for employees who believe they have been sexually harassed at work and employers who face such accusations. Both should consider the legal framework and it should inform their decisions so they can put themselves in the most advantageous position if they want to pursue or defend against such a legal claim. For example, as a strategic matter, an employee will generally want to include a corporate employer as a defendant in any claim related to sexual harassment as the individual employee who harasses a coworker will be unlikely to satisfy a monetary judgment. If an employee can establish that their employer knew or ought to have known that the employee was being harassed, then the employee may be able to prove constructive dismissal and a claim for damages against the employer in a court proceeding, use a lawyer for the proceeding, and obtain some reimbursement of legal fees. Absent a claim of constructive or wrongful dismissal, a claim for workplace sexual harassment would generally not be able to be brought in court.