Canadian HR Reporter

PM40065782 RO9496 THE NATIONAL JOURNAL OF HUMAN RESOURCE MANAGEMENT May 2019 www.hrreporter.com Harassment tort reversed Ontario appeal court rules on case involving RCMP constable BY SARAH DOBSON IN 2017, the Ontario Superior Court of Justice caused somewhat of a stir in the employment law realm when it recognized a new freestanding tort of harassment. The case involved RCMP constable Peter Merrifi eld, who claimed he suff ered harassment and bullying while on the force from 2005 to 2012. In allowing the action, trial court judge Mary Vallee found many of the managerial decisions Merrifi eld faced constituted ha- rassment, along with being liable for intentional infl iction of men- tal suff ering. She also recognized the new tort. As a result, Merrifield was awarded $100,000 in general dam- ages, alongside $41,000 in special damages and $825,000 in costs of the action. But that was wrong, accord- ing to the Court of Appeal for Ontario in a March 15, 2019, decision, noting the lower court erred in applying the test for mental suff ering, made errors in fact-fi nding, and should not have recognized a tort of harassment. e retraction is important for employers, according to Lisa Tal- bot, partner at Torys in Toronto. " e Court of Appeal decision in Merrifi eld very clearly said that — as of today anyway — we do not have a tort of harassment in Ontario. It left open the possibility that there could be a fi nding that there is a tort of harassment in the future, but not on these facts." e Court of Appeal has con- fi rmed that employees are not going to be given damages just for "harassment," but acts that could also be seen to be harass- ing or bullying or inappropriately T ransgender rights and issues continue to gain prominence in Canada. Except for the Northwest Territories and Nunavut, all Canadian jurisdictions now provide public health insurance coverage for gender or transition-related medical procedures, though most plans only cover the basic surgical procedures for transitioning. In April, Sun Life began off ering extended health coverage to plan members for surgical procedures not covered under the public plans, such as surgeries that feminize or masculinize an individual's features, according to Marie-Chantal Côté, vice-president of market development at Sun Life Financial Canada in Montreal. " ere can be a signifi cant impact on an indi- vidual's mental, emotional and physical well-being when they do not feel connected to their gender," she said. "Gender affi rmation procedures and hormone therapies can help a person feel empowered to align their body with their gender expression." And there is growing interest from Canadian em- ployers for this type of coverage, said Côté. "Everyone's needs are unique when it comes to health and wellness, so we continue to evolve and diversify our health benefi t plans in order to help meet the diversity of Canadians." Supporting a diverse workforce e move comes at a time when trans individuals are highly underemployed, according to Preston Parsons, employment lawyer at Overholt Law in Vancouver. "(It's) a great change to hopefully continue to in- crease the societal awareness, and change norms and stigma with respect to trans people in the work- place," he said. "People have been having gender affi rming sur- geries for some time. Some people have been doing it on their own dime, and now that that coverage is available, those employers will be more attractive to trans individuals." Many transitioning Canadians have already spent thousands of dollars on gender affi rmation journeys, Islamophobia at work Report says employers, unions should do more to combat prejudice page 2 Dancing sonographer gets job back Physical restrictions for job weren't the same for dancing page 5 Bee ng up exwork Success of distributed work contingent on leadership style, team capabilities page 14 In looking into bullying and harassment claims by an RCMP constable, a lower court recognized a tort of harassment — which has since been overturned. page 21 The bene ts of cannabis Should more employers be offering an add-on medical cannabis plan? Credit: REUTERS/Chris Wattie The transgender pride (left), pride (centre) and Canada 150 pride flags fly on Parliament Hill in Ottawa on June 14, 2017. PRIVACY > pg. 10 ESTABLISHMENT > pg. 12 Credit: REUTERS/Valerie Zink GENDER AFFIRMATION COVERAGE A WIN FOR DIVERSITY: EXPERTS Extended health benefi ts support transitioning workers BY MARCEL VANDER WIER safety-reporter.com STAY ON TOP OF YOUR OH&S

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