Class-actions can be effective in workplace harassment cases
By Tony Poland, AdvocateDaily.com Associate Editor
More class-action lawsuits relating to workplace harassment could be in the making, especially if the Supreme Court of Canada (SSC) decides to recognize harassment as a stand-alone tort, says Toronto class-action lawyer Margaret Waddell.
While lower courts have ruled there is no tort of harassment, if the SCC grants leave to appeal in two recent decisions, it could open the door to more to class-action suits, says Waddell, a partner with Waddell Phillips Professional Corporation.
She pointed to an Ontario Court of Appeal case that struck down a lower court decision awarding an RCMP sergeant more than $100,000 in damages for years of harassment by superiors. The case could end up on the SCC dockets.
“If the Supreme Court hears the appeal and decides that the law should move forward to include a tort of harassment, I think that we’re likely to see much more action in this field,” Waddell tells AdvocateDaily.com.
She says class-action lawsuits can be effective when it comes to systemic harassment, using one proposed claim against a Canadian airline as an example.
According to Global News, the airline has lost a legal challenge to halt a proposed class-action harassment lawsuit that was brought by a former flight attendant who alleges she was sexually assaulted by a pilot and that the airline breached its anti-harassment clause in her contract.
The lawsuit proposes to represent all current and former female flight attendants whose employment contracts included the clause, Global reports.
“I think that the field is ripe to be populated with more cases like that, where alleged systemic harassment in the workplace can be addressed through the class-action procedure,” Waddell says.
“If there’s a culture of sexual harassment that’s become endemic, then a class-action is an ideal tool for publicizing it and addressing the harm.”
She says such suits not only have the potential to compensate people who “have been hurt, but also bring changes in the way organizations operate.”
Waddell says the biggest challenge in filing class-action lawsuits in such cases “would be to demonstrate that there has been systemic harassment and that it isn’t just individual people being harassed.”
“There must be commonality across all of the people with the complaints. There must be something happening across the board, and that’s the hardest part of making out these cases,” she says. “There needs to be a broader issue at play.”
Waddell says there needs to be evidence of “an attitude of complacency of not responding to the issues that have become embedded in the company’s culture.”
She says since the arrival of the #MeToo movement, many have become more aware of their rights.
“People realize they can speak out and it’s not going to adversely impact their careers,” Waddell says.
Most companies, “especially large corporations, have reasonably good systems in place to address harassment, and our laws have improved substantially, so employers are required to have systems in place to make the workplace safer,” she says.
Still, Waddell says she believes there could be more class-action harassment suits on the horizon, despite the difficulties of the challenges faced by those filing them.
“If you want to come forward with these kinds of actions, it becomes very public, and harassment often is something that individuals are very sensitive about,” she says. “You take on a very public role in fighting it, so you have to have a pretty strong constitution.
“People need to be aware of the very public nature of a class proceeding and the scrutiny that they’ll be put under by the defendants if they pursue these cases,” Waddell says.
However, she says those who do take up the battle can become “real trailblazers.”
“They can help make the workplace a safe environment,” Waddell says. “Those who are prepared to stand up against the harassment are doing something important for their co-workers and future generations.”