In a recent post, we reviewed the impact of the amendments to Ontario’s workers’ compensation statute and its likely impact on civil tort cases in an employment context where the worker is covered by this legislation.

Other Layers

There are two further issues to be examined. The first is the consequence of this legislation on the right of the injured party to sue personal defendants employed by the company and the second is the impact of this statute, if any, on human rights claims.

Suing the Personal Offender

The first of these two issues is reviewed presently.

It may well be likely that a civil claim can be made the alleged offender personally.

This issue was considered by The Workplace Safety and Insurance Tribunal in its decision released in May of 2014.[1] The employer, Atotech Canada Ltd. and the personal defendant, Torcoletti, an executive officer of the employer, moved before the Tribunal to remove the plaintiff’s right to sue civilly upon her commencement of such a civil action in Kitchener.

The Facts

The plaintiff had alleged that the personal defendant, without her consent, manipulated her neck while she was sitting in the company boardroom and in so doing, had caused her serious personal harm. There was no allegation of sexual impropriety nor did the plaintiff allege that the conduct which caused her harm was intentional.

The Human Resources Manager testified that, without having had complaints about Torcoletti’s conduct, but rather, based on her own observations, she had instructed Torcoletti not to be physically demonstrative and had hence warned him not to touch employees or customers, except as necessary, such as shaking hands.

It was clear that the plaintiff was engaged in normal workplace activities when the alleged injuries were sustained and that the statute would bar a civil action against her employer. The issue presented was whether the statute also barred a claim against the personal defendant.

The test to be applied, the panel determined, was whether the Torcoletti was acting in an employment related capacity with respect to the alleged offensive actions as contained in the statement of claim.

Two important findings were made by the panel. The first was that the conduct was not work related and the second was that the employer had not condoned or accepted a lesser standard of conduct.

The panel also referenced the Board policy with respect to what is and what is not work related conduct, which states consideration should be given to the following factors:

  1. the duration of the activity;
  2. the nature of the activity; and
  3. the extent to which it deviated from the worker’s regular employment activitie

In determining whether an activity was incidental to the employment, the decision-maker should take into consideration:

  1. the nature of the work
  2. the nature of the work environment, and
  3. the customs and practices of the particular workplace.

In the application of this test, the panel found that the personal defendant acted outside the course of his employment and hence the action was allowed to proceed against him.

It is expected that many cases of abusive workplace conduct would not be within the realm of work related conduct. It would be only be in cases where the employer has condoned such activity would the personal defendant be allowed to strike the civil claim against him or her. Ironically, these cases would likely be in the context of an owner-manager being the abusive party.

Get Advice

This issue is a difficult one for many companies when facing such allegations. This test is not necessarily intuitive. Employers facing such claims need legal advice which is precise. The issue of the passing of time may be important for many reasons. Get advice quickly.

Employees facing such claims are looking at a minefield of complications. This applies both to the personal victim and the accused wrongdoer. Get advice promptly.

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.

[1] Decision 727/13