Briefing Note: No Tort of Harassment in Ontario – so says Court of Appeal
March 25, 2019
Dear Clients and Friends,
Stories of workplace harassment continue to receive front page news coverage in Canada, the United States, and abroad. A December 2018 Statistics Canada study titled, “Harassment in Canadian workplaces,” found that, in 2016, 15.9% of employees reported having experienced, “verbal abuse, humiliating behaviour, threats, physical violence, and unwanted sexual attention or sexual harassment in the workplace over the past 12 months.” An employer that fails to take the necessary steps to prevent or remedy this behaviour may face legal liability.
In the 2017 decision, Merrifield v. The Attorney General, Justice Mary Vallee of the Ontario Superior Court created new law when she held the tort of harassment exists in Ontario. Prior to the Merrifield decision, an Ontario employer that failed to take the necessary steps to prevent or remedy workplace harassment could face liability under the Occupational Health and Safety Act and, in certain circumstances, Human Rights Code. Merrifield meant an employer could also face a civil action for workplace harassment.
The Attorney General appealed the trial decision and, in March 2019, the Court of Appeal for Ontario overturned it, holding the tort of harassment does not exist in Ontario – at least, not yet. The Court of Appeal did not foreclose the possibility that, in different circumstances, a “properly conceived tort of harassment…might apply in appropriate contexts.”
This is good news for employers – for now.
Learn more in the attached briefing note.
SHERRARD KUZZ LLP | Employment & Labour Lawyers
250 Yonge Street, Suite 3300, Toronto, Ontario, Canada M5B 2L7