One might expect that the issue of employer liability in negligence for failing to provide a safe employment environment should not be an earth shattering conclusion. Many persons subjected to workplace sexual harassment have considered this as a means of remedy. They should tread carefully as they are likely wrong in this assertion of employer liability.
The Duty of the Employer Well Founded
The Ontario Court of Appeal clearly defined such a duty of the employer, albeit in the context of the defence of a wrongful dismissal claim. The manager was then found to have a duty to protect the employer from the possibility of civil suits arising out of sexual harassment, and a duty as the agent of the employer to protect the employees from sexual harassment.
Further, the Occupational Health and Safety Act in Ontario makes it mandatory for the employer to maintain and implement a policy to ensure its workforce remains free from threats of workplace violence and harassment, including sexual harassment.
Clearly there is a statutory duty and indeed a common law obligation upon the employer to maintain a safe work environment. One would expect that the law would allow a remedy in negligence for the failure to do so.
Ontario’s Policy Motivator
This is not, however, as simple a proposition, as the above references would suggest. There has been noticeable reluctance in Ontario and Nova Scotia at the appellate level to acknowledge such a claim in negligence against an employer for “policy” reasons.
The analysis of the application of the duty of care to an employer for damages for negligence will first require a review of the test as set out by the Supreme Court.
The first issue is whether the common law has recognized such a duty of care for such a category of cases. If this is not established, the second issue then will become whether there has been established a “novel” duty of care established. To date, there has been no establishment of such duty of care as a given presumption based on a claim in tort.
This being said, the accepted test for the establishment of such a “novel” duty of care” is that:
- There is a proper proximity between the parties that it “would not be unjust or unfair to impose such a duty of care”;
- The damages asserted are reasonably foreseeable as a consequence of the breach of this duty;
- There is no policy reason to deny or qualify such a duty.
The existence of such a duty of care was considered by the Ontario Court of Appeal in a case alleging physical and other abuse in the workplace, which was not sexual. The court found the first two steps of the “novel” approach were met, but the case failed on the policy considerations, due to the finding that such a tort notion of “good faith and fair dealing” in dismissing an employee would be a radical departure from the common law.
The Court of Appeal hence rejected such a tort duty on the basis that the suggested duty to “shield an employee during the entire course of his or her employment from acts in the workplace that might cause mental suffering strikes me as far more expansive than a duty to act fairly and in good faith during just the termination process”. Such a proposed duty, as the court noted, “would require employers to shield employees from the acts of the other employees that might cause mental suffering”.
Of significant note in this analysis was its dependence on the principle that the existing law allowed such a duty of good faith only on termination.
The Ontario Court of Appeal in 2008 considered whether such a claim in negligence could be made against the employer and/or the investigative company hired by the employer.
Due to certain suspicions held by the company, it retained a private investigative firm, Aston Associates Investigations Ltd. to explore the validity of its concerns. This company, in turn, placed an undercover agent into the workplace. It and the employer determined that certain Canac employees were engaged in theft and drug dealing.
The investigator named in its first report a list of suspects. Regrettably, it erred in its second report in the spelling of the accused person, incorrectly citing one Joao Correia, and not the correct suspect, Joao Corriero. The photographic identity cards were not cross-referenced. The wrongly accused person was 62 years old, some 40 years older than the correct suspect.
The company terminated the wrong person due to this error. He was also arrested by the police and faced criminal charges of theft.
He was held in custody for three hours and released. Four months later, the charges were dropped. Canac offered to reinstate, but the plaintiff was too shocked to return to work.
The plaintiff sued an assortment of defendants, including the employer and the investigative company and others for assorted forms of relief, including the intentional infliction of mental distress and negligence in the conduct of the investigation.
The Court of Appeal saw no potential claim in law against the employer in negligence.
The Court of Appeal also allowed the claim for the intentional infliction of mental distress to proceed against the employer, the investigator and the Head of Human Resources in her personal capacity. This is a far different test than that of negligence as intent must be proven.
There are some inroads, however, developing to counter this principle. The law is not quite as simple one might conclude from the Court of Appeal decision.
The Supreme Court of Canada in its November 2014 decision of Bhasin spoke to the issue of “honest performance” throughout the entirety of the relationship and that this duty of good faith is no longer limited to the “moment of termination”, as it arguably once was so confined.
Following Bhasin, there has evolved a distinct liberal reading of the Bhasin theme. The reluctance of the Court to rely specifically on the contractual term and instead consider the relationship in its broadest concept is reflective of a generous interpretation of the obligations of the contracting parties to one another.
The same liberal view may well apply to the determination of the issue of this developing tort and indeed the application of the Bhasin theme to the entirety of the employment relationship. The distinctive qualifiers offered by the Ontario courts to deny a negligence claim based appear to be falling by the wayside. The duty of good faith may readily allow a civil action for unfair conduct which is sexual harassment.
A recent decision of the Ontario Superior Court also reviewed the same “novel” analysis based on a claim made by female employees of a subordinate company in Guatemala who suffered sexual abuse. After noting that the first two steps of the analysis were met by the pleadings, the court then considered the policy issue, to which the court concluded that there were “competing” policy issues which were sufficient to allow the case to proceed to trial.
It is to be noted that the policy arguments may be unique to the facts of the case, namely, a Canadian mining company sued by persons alleging serious harm by security personnel at its foreign location, apparent steps being taken by the Canadian federal government to encourage a high standard of “corporate social responsibility” and the need to marshal the international activities of western companies in developing countries.
One would expect a possible claim could be made in contract or negligence where the employer was in default of its obligation to have in place a harassment policy to prevent and investigate workplace sexual harassment where such a policy is required by statute. These statutory duties may well allow for the policy considerations to be found in favour of the tort duty, particularly when read in conjunction with the Bhasin duty.
The human rights regime does not specifically deal with employer in negligence in the strict sense of the word. It does, however, allow for the concept of a “poisoned work environment” to find employer liability. The conduct need not be intentional. It rarely is. In essence, it attaches liability to the employer’s failure to maintain a proper and safe workplace. It is negligence but for semantics.
This is likely not the end of the debate on the issue of a claim to be made against the employer in negligence. It should be revisited.
Legal Advice Will Unlock the Doors
The issue of employer responsibility in negligence for sexual harassment cases is not one which is predictable. It is a developing subject matter and likely should be considered by the plaintiff employee as a last resort.
Employers must be aware of their legal responsibility to maintain a safe workplace and also be aware of the potential liability when this duty is not met.
If you have questions about this issue of employer responsibility for human rights liability, in negligence or otherwise, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
 The Supreme Court of British Columbia in Corfield v Shaw, Baker and Baker Industries, 2011 BCSC 1529 (CanLII), a 2011 decision of Mr. Justice Buller, agreed with the basic assertion in law that the employer owed to the plaintiff employee a duty of care, although did not apply the duty in this instance. In Fleming v Ricoh the issue was raised obliquely.
 Bannister v. General Motors of Canada Ltd. 1998 CanLII 7151 (ON CA), (1998) 40 O.R. (3d) 577 (O.C.A.). Gonsalves v. Catholic Church Extension Society of Canada 1998 CanLII 7152 (ON CA), (1998) 164 D.L.R. (4th) 339 (Ont. C.A.)
 Ontario’s OHSA has been amended by Bill 132 which is in effect as of September 8, 2016. “Workplace harassment” has been defined to include “workplace sexual harassment”.
 Emphasis added
 Piresferreira v Ayotte OCA para 61, 319 DLR (4th) 665;  OJ No 2224 (QL); 263 OAC 347; leave to appeal refused  SCCA 283. This decision denied the claim against the employer and the supervisor in his personal capacity.
 Wallace v. United Grain Growers Ltd., para 76, 152 DLR (4th) 1;  4 WWR 86; 219 NR 161; 3 CBR (4th) 1;  CarswellMan 455;  SCJ No 94 (QL); 123 Man R (2d) 1; 159 WAC 1;  ACS no 94; 97 CLLC 210
 The same policy reason prevented a plaintiff from suing his employer for a negligent investigation in Correia v Canac Kitchens OCA, 91 OR (3d) 353; 294 DLR (4th) 525; 58 CCLT (3d) 29;  CarswellOnt 3712;  OJ No 2497 (QL); 167 ACWS (3d) 422; 240 OAC 153; 67 CCEL (3d) 1 . Much to the same effect is the decision of the Nova Scotia Supreme Court in Sanford v Carleton Industries 2014 NSSC 187 (CanLII)
 Much to the same effect is the decision of the Alberta Queen’s Bench in Styles v Alberta Investment Management 2015 ABQB 621 (CanLII) and generally in Karmel v Calgary Jewish Academy 2015 ABQB 731 (CanLII). The application of Bhasin v Hrynew to the entirety of the employment relationship is now clearly beyond dispute.
 Choc v Hudbay Minerals 2013 ONSC 1414 (CanLII)the issue arose on a motion to dismiss as showing no reasonable cause of action in negligence and hence the reasons allow only that the action may proceed to trial.
 As in Ontario, Canada, PEI, NWT and Saskatchewan
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