Canadian HR Reporter

CANADIAN HR REPORTER SEPTEMBER 2018 6 NEWS #UPSkillsForWork fl Find out how to get the skills edge at upskillsforwork.ca/workplace This project has been partly funded by the Government of Canada through the Adult Learning, Literacy and Essential Skills Program. Founding Sponsor Equip your team with the key skills they need to be confident and job ready. Does your team have the right skills for the job? (such as race, sex, sexual orienta- tion, disability, religion or family status). An employer's failure to take proactive steps to prevent and respond to human rights-based harassment can result in signifi- cant sanctions such as a damage award and a range of public inter- est remedies aimed at reducing future incidents. In the recent case of A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107, the Human Rights Tribunal of Ontario awarded the applicant $200,000 in general damages for injury to dignity, feelings and self-respect. She had been sub- jected to egregious and persistent sexual harassment and assault over a decade, during which time Singer was her employer and landlord. e impugned behav- iour included: • grabbing, licking and kissing the applicant in the workplace • rubbing himself against the ap- plicant and attempting to pull her pants down • making comments to the appli- cant about her chest size • forcing the applicant to perform oral sex and sexually assaulting the applicant in her apartment While the circumstances of this case were extreme, this damage award is one of the highest sexual harassment awards in Canada. Civil remedies for workplace harassment In addition to legislative sanc- tions, courts and arbitrators can impose considerable civil liability on an employer that fails to have and appropriately implement pol- icies and protocols to respond to a complaint of violence or harass- ment. e case of Boucher v. Wal- Mart Canada Corp., 2014 ONCA 419 is a good example of how an employer's failure to appropriately investigate an allegation of harass- ment can be a costly mistake. Boucher, an assistant manager at a Walmart in Windsor, Ont., was the subject of workplace harassment by her immediate supervisor. She was consistently and increasingly belittled, hu- miliated and demeaned, often in front of co-workers. When she complained to Walmart's senior management, they undertook to investigate her complaints, but did so only half-heartedly. e in- vestigator found the complaints unsubstantiated following which, after another occurrence of pub- lic humiliation, Boucher quit and sued for constructive dismissal. A jury found Boucher to have been constructively dismissed and, in addition to her entitle- ments under her employment agreement, awarded $1,200,000 in aggravated and punitive dam- ages against Walmart, as well as $250,000 against Boucher's su- pervisor for intentional infliction of mental suffering and punitive damages. e Court of Appeal re- duced the punitive award against Walmart from $1,000,000 to $100,000, and against the super- visor from $150,000 to $10,000. Still, these awards now rank among the highest in Canadian history for employer misconduct of this nature. Ontario recognizes tort of harassment Historically, courts only awarded damages for an employer's failure to appropriately address work- place harassment where there was also an underlying claim of wrongful or constructive dis- missal. However, recently, the Ontario Superior Court of Justice in Merrifield v. e Attorney Gen- eral, 2017 ONSC 1333 recognized the existence of the tort of harass- ment. Now, an Ontario employee may file a claim seeking damages for harassment independent of any other claim. Peter Merrifield was an RCMP officer who alleged he was con- structively dismissed and ha- rassed over a prolonged period of time by the senior officers within the force. He claimed that, after deciding to run for political of- fice, he was targeted by his supe- riors who damaged his reputa- tion through baseless allegations, including of criminal misconduct. Merrifield alleged this ongoing negative treatment impeded his career advancement and caused him extreme emotional distress and depression. e court held Merrifield could not claim damages for construc- tive dismissal as his relationship with the RCMP arose by virtue of statute, not contract — however, he could bring a claim for the tort of harassment. To this end, the court identified a four-part test for establishing this cause of action: 1.Was the defendant's conduct toward the plaintiff outrageous? 2.Did the defendant intend to cause emotional stress to the plaintiff or did the defendant have a reckless disregard for causing the plaintiff to suffer emotional stress? 3.Did the plaintiff suffer from se- vere or extreme emotional dis- tress? 4.Was the defendant's outrageous conduct the actual and proxi- mate cause of the emotional dis- tress? e court was satisfied Mer- rifield had satisfied all four parts of the test and awarded him dam- ages of $100,000 for harassment and the intentional infliction of mental suffering. It remains to be seen whether courts in other jurisdictions will also recognize the tort of harass- ment. However, employers across the country should be prepared for this possibility and the result- ing increase in civil claims for workplace harassment. Lessons for employers As an employer, you may not al- ways be able to prevent workplace harassment. However, you can take proactive steps to minimize risk and, if necessary, appropriate- ly respond. Consider the following best practices: • Have a workplace violence and harassment policy: Ensure it is compliant with all applicable legislation. Train employees and management on its content. En- force it consistently and trans- parently. • Investigate: An investigation is critical and in some cases man- dated by law. is is not the time to take shortcuts or ignore the problem. • Offer support: Where appropri- ate, offer support to an alleged victim; this can help avoid or re- duce liability. • Mediate and de-escalate: Where appropriate, make ef- forts to mediate and de-escalate animosity among workplace par- ties, particularly if they will work together in the future. • Consult with counsel: Some situations are more complex and sensitive than others. If you think you may be in over your head, or want to bounce an idea off of someone knowledgeable but neutral, consider early consulta- tion with employment counsel experienced in the intricacies of workplace harassment. Lisa Bolton and Gerald Griffiths are lawyers at Sherrard Kuzz in Toronto, an employment and labour law firm representing management. ey can be reached at (416) 603-0700 (main), (416) 420-0738 (24-hour) or by visiting www.sherrardkuzz.com. Civil liability also a concern HARASSMENT < pg. 5

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