Employment & Labour

OCA ruling doesn’t mean employers can act with impunity

By Tony Poland, AdvocateDaily.com Associate Editor

A recent Ontario Court of Appeal (OCA) ruling that refused to recognize the tort of harassment doesn’t give “carte-blanche” to employers to engage in such conduct, says Toronto employment lawyer Christopher Achkar.

The court made its determination regarding the tort “due to its inexistence in all jurisdictions, including laws from the United Kingdom where we derive the common law,” says Achkar, founder of Achkar Law.

“Employees have to use the more strenuous test of Intentional Infliction of Mental Distress (IIMD), where the conduct has to be flagrant and outrageous, calculated to produce harm, and that resulted in visible and provable illness,” he tells AdvocateDaily.com.

“Allowing workers to rely on a less onerous test for harassment would force employers to be ultra-careful when dealing with them — potentially risking productivity in the workplace,” says Achkar.

Court heard the man filed a lawsuit against the Royal Canadian Mounted Police claiming he had been bullied and harassed by his managers while he was employed as a sergeant.

An Ontario Superior Court justice awarded the man $141,000 in damages and $825,000 in legal costs in the lawsuit.

The Court of Appeal found that in making her decision, the trial judge “reviewed in considerable detail more than seven years of strained relations” between the man and several of his superiors and found that they behaved in a way that constituted IIMD, which is a recognized tort.

“In allowing the action, the trial judge recognized a new freestanding tort of harassment and found that many of the managerial decisions made in relation to [the plaintiff] constituted harassment,” according to the appeals court.

However, in reversing the decision, the OCA ruled “the trial judge erred in concluding that the tort of harassment exists in Ontario and we are not persuaded that the tort should be recognized.”

“For employers, that is a relief. Now, employees can’t seek additional damages from the courts unless they prove all three elements of IIMD,” says Achkar.

“That said, employers should still approach their interactions with their employees with the utmost care, despite the civil courts putting limits on the common law tort of harassment.”

He says employers “can still be pulled into litigation through their obligations under statutory instruments such as the Ontario Labour Relations Act, and health and safety and human rights legislation.

"Recently, the Supreme Court of Canada denied leave in this case, closing the chapter on the tort of harassment, at least for the foreseeable future," Achkar says.

“The common law is known to be sometimes slow. It’s an evolving creature that may, at some point, acknowledge the tort of harassment, but at this time, it remains a distant possibility,” he says.

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