Curated Content Canada: Ontario Court Affirms That Workplace Sexual Harassment Is Not An Independent Tort

The Ontario Superior Court of Justice recently released a decision, Incognito v. Skyservice Business Aviation Inc., 2022 ONSC 1795 ("Skyservice"), in which it struck out a Plaintiff's claim for vicarious liability against her employer, Skyservice Business Aviation Inc. (the "Employer") in connection with workplace sexual harassment allegations by the Plaintiff against another employee.

Skyservice affirms that sexual harassment is not an independent tort and does not give rise to a stand-alone civil cause of action, and further that an employer cannot be found vicariously liable for such claims.

Legislative Background - Human Rights Code & Civil Remedies

Skyservice considers the interaction between the Ontario Human Rights Code (the "Code") and the common law, and, more specifically, how the Code acts to preclude individuals from bringing civil claims in respect of matters dealt with under the Code.

By way of further background, Canadian courts, starting with the Supreme Court of Canada's decision in Seneca College v. Bhadauria,1981 CanLII 29 (SCC) ("Bhadauria"), have consistently enforced the Code to preclude plaintiffs from pursuing common law remedies, in part on the basis that the Code already contains comprehensive enforcement schemes for violations of its substantive terms.¹

The above is embedded in Section 46.1 of the Code, which permits a plaintiff to seek a civil remedy in court with respect to a breach of the Code, but only where the claim is tied to a non-Code based cause of action. In other words, to seek a civil remedy for breach of the Code, the cause of action cannot be based solely on the infringement of a Code-based right. For example, an employee may be able to bring a workplace sexual harassment claim as a component of a wrongful dismissal claim, but cannot bring a civil claim for workplace sexual harassment on its own. Section 7 of the Code prohibits sexual harassment or sexual solicitation in the workplace and complaints for breaches of Section 7, on their own, should be brought before the Ontario Human Rights Tribunal.

Notably, Section 46.3 of the Code also expressly excludes a company from being held vicariously liable for acts of workplace sexual harassment by its officers, agents, or employees. As such, complaints of workplace sexual harassment must be brought against the individual who committed the alleged wrongdoing in order to disclose a proper cause of action.

Facts in Skyservice and the Parties' Positions

The Plaintiff in Skyservice was a long service employee of the Employer. She alleged that she had been subject to sexual assault and sexual harassment by an executive of the Employer over a period of many years, in connection with which she made the following civil claims: (1) as against the individual, damages for sexual assault and sexual harassment; and (2) as against the Employer, damages for vicarious liability for sexual assault and sexual harassment.

In regard to her claim against the Employer, the Plaintiff alleged that it had failed to provide her with a safe work environment, did not have an appropriate code of conduct, and ignored her complaints about the executive's conduct.

In response to the above, the Employer brought a motion to strike out the claim of vicarious liability for sexual harassment on the basis that this claim did not disclose a civil cause of action. To this end, the Employer took the position that sexual harassment is not a recognized tort in Ontario, that the Court's jurisdiction to determine damages arising from sexual harassment was ousted by the Code, and that in any event, it could not be vicariously liable for the executive's alleged sexual harassment of the Plaintiff in accordance with Section 46.3 of the Code.

The Plaintiff submitted that her claim for sexual harassment was permissible since she was relying on the action to increase the amount of damages she was seeking for the tort of sexual assault (which was not disputed as being a valid cause of action). The Plaintiff also submitted that previous case law indicated that there may be the potential for a properly conceived tort of sexual harassment in the event that there was a compelling policy rationale to do so, and argued that the "Me Too' movement offered such a rationale. The Plaintiff relied on the Ontario Court of Appeal's Merrifield v. Canada (Attorney General) decision ("Merrifield"), which declined to recognize a tort of civil harassment (not sexual harassment) but did not foreclose the development of such a tort in the appropriate context (for further discussion of Merrifield see our 2019 blog post).

The Decision

The Court granted the Employer's motion to strike out the Plaintiff's claim of vicarious liability for sexual harassment on the basis that no such cause of action exists in law.

The Court's decision was very clear that in accordance with prior case law, and contrary to the Plaintiff's position, there was no independent tort of sexual harassment in Ontario. As to the application of Merrifield, the Court emphasized that the decision did not pertain to sexual harassment as prohibited under the Code and did not override Bhadauria. The Court also noted that the Plaintiff's position was undermined by the fact that a corporation cannot be vicariously liable for the acts of its employees, agents, or officers when it comes to sexual harassment under the Code.

Impact & Action

Skyservice confirms two important concepts for parties engaged in workplace harassment-related litigation:

• A breach of the Codecannot be brought as an independent civil action. This prohibition is intended to prevent individuals from pursuing a common law remedy in the circumstances where there is already a mechanism to address the claim and seek redress through the Code; and
• A breach of the Code can be brought in connection with another independent civil action, provided the claim is consistent with the provisions of the Code. In Skyservice, an inconsistency arose between the Plaintiff's claim against the Employer, and the fact that the Code expressly excludes a corporation from being held vicariously liable for acts of sexual harassment by its employees, agents, or officers.

The findings in Skyservice do not absolve an employer of liability where it has failed to meet its duties under the Ontario Occupational Health and Safety Act ("OHSA") to provide a safe work environment and/or to investigate and address complaints of workplace harassment (which under OSHA includes sexual harassment). Other remedies may also be available to an employee in connection with civil claims involving workplace harassment and/or workplace sexual harassment, where employers have not fulfilled their duties (such as damages for constructive dismissal, and aggravated or punitive damages).

Employers should be mindful that employees can seek redress under OHSA if an employer fails to meet the above obligations. An employee may also be entitled to Workplace Safety and Insurance Board benefits for work related chronic mental stress injuries which may can arise in circumstances of workplace harassment.

Footnote

1. See paragraph 21 of Skyservice for the line of Ontario cases applying Bhadauria.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.