Michael Ford
Employment & Labour

Latest Chapter in Employment Law: Bill 148, tort of harassment

By Natalie MacDonald and Geoffrey Lowe

Bill 148 brings big and not so big changes to the Employment Standards Act, 2000

In May, the Changing Workplaces Review released its long-awaited final report, the culmination of two years of work spearheaded by special advisors C. Michael Mitchell and Retired Justice John H. Murray. This report suggested sweeping changes to Ontario’s Employment Standards Act, 2000 (the ESA), including wage normalization for some overlooked employees, changes in how the Ministry of Labour addresses ESA violations, and substantial changes to how workers obtain outstanding wages subsequent to their employer’s bankruptcy.

A week after the release of the report, the Ontario government released its own set of suggested changes to the ESA, largely omitting the recommendations in the report. These changes, codified in Bill 148, the Fair Workplaces, Better Jobs Act, 2017, included:

  1. An increase in the hourly minimum wage, to $14.00 in 2018, and to $15.00 in 2019;
  2. Removal of the 50 employee threshold for the ESA’s emergency leave provision. This mandates that all employers permit their employees to take up to 10 days of emergency leave per calendar year, with two of these days provided with pay;
  3. An increase in vacation from two weeks to three for every employee with five or more years of service at an employer;
  4. Requiring employers to compensate employees for their time spent on call, when changing their shifts with under 48 hours’ notice, and for a minimum number of hours when called in for a brief period;
  5. Providing workers the right to request scheduling and location changes, and to refuse a shift change made less than four days before the shift;
  6. Increasing fines for ESA violations by employers; and
  7. Mandating that employers pay all employees performing the same tasks at the same rate, irrespective of the employee’s status (part-time, casual, temporary, or seasonal).

The majority of the changes suggested in Bill 148 will benefit precariously employed workers, including individuals employed part-time and those working for temporary agencies.

The first reading of Bill 148 was on June 1, 2017, and the bill has been moved to committee for comment from a broad spectrum of stakeholders. It is accordingly impossible to determine with certainty what changes to the ESA will be implemented by the final version of the bill.

If Bill 148 is enacted as it presently reads it will lead to dramatic changes in how employers interact with and manage their staff. This makes now the optimal time to review your company’s human resources policies and procedures to be sure that they are not in opposition to the potential changes coming to the ESA. Rudner MacDonald LLP can assist you with this by performing an HR checkup on your existing policies and procedures to ensure that they are compliant with today’s law and ready for tomorrow’s changes. Contact Rudner MacDonald LLP today to schedule your HR checkup.

The tort of harassment

In this case, Justice Vallee of the Ontario Superior Court of Justice recognized the existence of the common law tort of harassment in Ontario. The elements of this tort were first described by Justice Prowse of the British Columbia Supreme Court in 2006 as identical to the American tort of intentional infliction of emotional distress, specifically:

  1. Outrageous conduct by the defendant;
  2. The defendant’s intention of causing or reckless disregard of causing emotional distress;
  3. The plaintiff’s suffering of severe or extreme emotional distress; and
  4. The actual and proximate cause of the plaintiff’s emotional distress by the defendant’s outrageous conduct.

Justice Prowse cited American jurisprudence for the definition of the requisite level of emotional distress as “emotional distress of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it”.

The elements in the B.C. case had been cited in Ontario in several harassment cases prior to this case, but had not been applied individually. It remains the sole instance of an Ontario court applying the individual elements of this tort to a set of facts.

The case involved a decade-long campaign of harassment against an RCMP officer by a superintendent, a Javert-like figure in RCMP’s middle management. This campaign included repeated allegations of misconduct against the officer, many of which led to formal investigations, all of which cleared the officer of any wrongdoing, and repeated transfers of the officer out of his area of expertise over his objections and despite his demonstrated competence in this area.

The officer sued the RCMP for condoning and enabling the superintendent’s actions and was awarded $100,000 in damages against the RCMP for harassment and intentional infliction of mental suffering.

In applying the elements of tort to the officer’s situation, Justice Vallee noted that the plaintiff was not required to provide medical evidence of emotional distress

This tort has not been subsequently applied in any Ontario court. The judgment in the case was the result of almost a year and a half of trial. An appeal is almost guaranteed. Whether harassment will continue to exist as an independent cause of action remains to be seen.

Are you an employee who feels that they have been harassed by their employer or a colleague at work? Contact Rudner MacDonald LLP today to discuss your rights and potential remedies.

The long-term result in the case will not impact an employer’s obligations to have a comprehensive anti-harassment and workplace violence policy in place and to ensure that its procedures are followed. Rudner MacDonald LLP can assist employers with drafting and implementing an anti-harassment and workplace policy. In the worst case scenario, we can help you respond to employee allegations of harassment. Contact us today to discuss your rights and obligations.

Update: TTC’s drug and alcohol testing policy

In April 2017’s Latest Chapter in Employment Law we told you about TTC’s soon to be implemented drug and alcohol testing policy, and the ATU’s unsuccessful attempt to seek an injunction to block its implementation. Since testing has begun at least five TTC employees have failed the test, four for drugs, and one for alcohol. The TTC has stressed that none of the five employees were transit operators.

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