Reports of sexual harassment in an employment environment have become far too common. Unnecessary physical contact, sexual jokes or comments about physical appearance are unacceptable.

There are various options available for employees to seek remedies for sexual harassment in the workplace in Ontario. This article reviews some of these routes in addition to a recent Ontario Superior Court of Justice decision in which an employee sued her employer for vicarious liability for sexual harassment and sexual assault.

What is sexual harassment?

Sexual harassment is a form of discrimination. According to the Ontario Human Rights Code (the “Code”), sexual harassment is defined as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”.

One incident may be serious enough to constitute sexual harassment. Incidents may include being asked for sex in exchange for a promotion, not taking “no” for an answer when asking for dates, and using insulting language or stereotypes about sex or gender. Importantly, sexual harassment does not need to be sexual in nature. You can find various examples on the Ontario Human Rights Commission website.

Sexual harassment in the workplace may breach several Code provisions. The most obvious is a breach of section 7, which provides that employees have a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by their employer, agent of their employer or another employee.

Filing a human rights claim at the Human Rights Tribunal of Ontario 

One option for employees seeking relief for sexual harassment is by filing a claim with the Human Rights Tribunal of Ontario (the “HRTO”). Employees can file an application with the HRTO alleging a violation of their rights under the Code. Failing a negotiated settlement, an adjudicator will conduct a hearing and determine whether an employee’s Code right has been breached.

We have previously written about an HRTO case in which an employee was awarded lost income and damages for injury to dignity, feelings and self-respect following a finding of sexual harassment. The adjudicator also ordered public interest remedies, requiring the employer to complete a course and implement human rights policies in the office.

It is important to note that some rights must be enforced directly against the relevant person, rather than a corporate employer. Under the Code, employers are not vicariously liable for certain acts of their officers and employees, including in respect of breaches of section 7.

Claiming sexual harassment as part of a civil action following termination

Another option available to employees is to commence a civil proceeding in the court system. For example, employees may be able to prove incidents of sexual harassment to show that they were forced to work in a toxic or poisoned work environment, which may amount to a constructive dismissal.

The Code allows a court to find that a party has infringed another party’s rights under the Code and order the payment of monetary compensation for losses arising out of the infringement and/or restitution. However, the party claiming infringement must have an independent civil cause of action (such as wrongful or constructive dismissal); they cannot commence a civil action solely based on an infringement of a Code right.

Independent tort of sexual harassment

This raises the question of whether there is an independent civil wrong of sexual harassment in Ontario. If there was, an employee could bring a civil action in court on this basis and also claim infringement of a Code right.

In the recent case of Incognito v Skyservice Business Aviation Inc., the plaintiff employee alleged that she was subject to sexual harassment throughout her employment. She sued the employer and a Vice-President of Sales. 

The employee claimed vicarious liability against the employer for sexual assault and vicarious liability for sexual harassment. The employer sought to have the claim of vicarious liability for sexual harassment struck out due to the fact that it was not a reasonable cause of action. 

Ontario courts do not recognize tort of sexual harassment

Justice Vermette explained that the Supreme Court of Canada has long held that the Code forecloses any civil action based directly upon a breach of the Code. Given that the Code prohibits sexual harassment, “Ontario courts have consistently held that sexual harassment is not an independent tort that can support a cause of action.”

As a result, the plaintiff’s claim of vicarious liability for sexual harassment against her employer had no reasonable prospects of success and this claim was struck. 

Employee not necessarily prevented from alleging a Code violation in the court case

Justice Vermette, however, identified a way for the plaintiff to potentially avoid this problem, involving her other claim against the employer of vicarious liability for sexual assault. 

As noted above, the Code states that employers are not vicariously liable for some acts of their officers and employees, including breaches of section 7, which is the direct prohibition against sexual harassment. However, this does not apply to the breach of all Code rights, for example, the right not to be discriminated against with respect to employment. 

Her Honour stated that the facts alleged by the plaintiff could potentially support a claim for compensation under the Code in relation to the infringement of such a provision that the employer could be vicariously liable for, as an element of the civil claim of vicarious liability for sexual assault. The decision does not prevent the plaintiff from amending her claim accordingly.

Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Advice on Human Rights and Harassment Claims 

If you have faced harassment or a human rights violation at work as an employee, or if you have had a claim filed against you as an employer, it is important to consult with a knowledgeable employment lawyer to increase your chances of obtaining a successful outcome. At Grosman Gale Fletcher Hopkins LLP, we provide clients with trusted advice to assist in dealing with a broad range of workplace matters. To speak with a member of our employment law team, call us at 416.364.9599 or reach out to us online to schedule a consultation.