Employment & Labour

OCA right to reject tort of harassment: O’Donnell

By Paul Russell, AdvocateDaily.com Contributor

The Ontario Court of Appeal (OCA) was correct in rejecting the tort of harassment, though it wisely left the door open to study it again in the future, says Toronto employment lawyer Sean O’Donnell.

“If the right case comes along, I suspect the court will be willing to consider it,” says O’Donnell, principal of SJO Legal Professional Corporation.

In the recent decision, a unanimous three-judge panel of Ontario’s top court overturned a trial judge’s decision to recognize the civil tort of harassment as part of a $140,000 award to a former RCMP officer.

According to court documents, the RCMP officer joined the nomination race for the federal Conservative Party in 2005 and alleged his support for the traditional concept of marriage and the abolition of the long-gun registry upset his RCMP superiors. He was subsequently investigated and transferred, which he says led to severe emotional distress.

After finding the officer had proven the new tort of harassment, along with meeting the more stringent test for intentional infliction of mental suffering, the trial judge awarded him $100,000 in combined damages, plus another $40,000 in special damages, according to court documents. When the OCA reviewed the case, it found “no compelling reason to recognize a new tort of harassment in this case,” considering the tort of intentional infliction of mental suffering was available.

“The lower court’s decision to recognize another tort surprised many employment lawyers since new ones are rarely created,” O’Donnell tells AdvocateDaily.com.

In its judgment, the appeal court explains how updates to Ontario law should be made.

“Common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically … significant change may best be left to the legislature,” court documents state. “The court can create a new tort anytime it considers it appropriate to do so. But that is not how the common law works, nor is it the way the common law should work.”

From a legal perspective, O’Donnell says there are various ways individuals can seek remedy for harassment in the workplace, starting with the Occupational Health and Safety Act.

“The Ministry of Labour can order an investigation into allegations of workplace harassment, with a third party often brought in to investigate, such as an employment lawyer,” he says.

The second option is through the Ontario Human Rights Code, though it’s only applicable if the harassment is connected to a prohibited kind of discrimination, such as age, gender, or sexual orientation, O’Donnell says.

“If you win at the human rights tribunal, general damages are awarded to compensate for injury to dignity, feelings and self-respect, and these are tax-free,” he says.

The third avenue would be under the tort of intentional infliction of mental distress, though winning a case in these circumstances can be difficult, O’Donnell says.

“The conduct of the employer has to be flagrant and outrageous, and intentionally done to produce harm, plus it has to result in a visible and provable illness such as depression or medical anxiety, as opposed to the normal emotional distress,” he says.

“Going after this kind of compensation is a bit of a roll of the dice,” O’Donnell notes.

A fourth option is to seek moral damages, he says. These are applicable if the employer is guilty of bad faith in the time leading up to, during, or after the termination.

“Some employers engage in all sorts of nefarious behaviour when they let someone go,” O’Donnell says, citing a case he was involved in where the employer threatened to call the police when a former employee arrived to return company equipment.

“To win a claim here, bad faith behaviour has to result in mental distress, but its not quite the same high bar as with intentional infliction of mental distress, which basically requires a medical condition,” he says.

ODonnell says he is pleased that judges allow for moral damages to be awarded without having to prove the former employer’s actions led to a medical condition.

“There is still a social stigma around depression and anxiety, so not everyone will go see a doctor about the mental issues they are facing,” he says.

The final option is to make a claim to the Workplace Safety and Insurance Board (WSIB), O’Donnell says, adding, “I’m not really a fan of the WSIB, as it is very much like an insurance company that always wants to deny coverage or benefits.”

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