Thursday, September 14, 2017

CAN I BE SUED FOR HARASSMENT?

By Michael Rosenberg

In order for an individual or an organization to be sued in civil court, there must be a tort.  Tort law is a foundation of the legal system.  There are 2 types of torts – criminal and civil.  Criminal torts (i.e. murder, robbery, etc.) are punishable by imprisonment.  Civil torts, on the other hand, provide compensation for people who have been injured or whose property has been damaged by the wrongdoing of others.  Civil torts include such things as a breach of contract, slander, fraud, etc.  In order to sue a person or organization in a civil court and seek damages, there must be a civil tort in place to sue.  For instance, discrimination is not a civil tort.  You can complain about discrimination to a number of tribunals (i.e. the Human Rights Commission, the Ministry of Labour, etc.) but you cannot sue your employer in civil court for discrimination.  These tribunals can impose fines on an organization.  What they cannot do (which a civil court can) is seek damages against the aggrieved party. 

Is harassment considered a civil tort?  In other words, can you sue both your employer and an individual employee for workplace harassment?  The answer now is yes, you can!

On February 28, 2017, the Honourable Mary  E.  Vallee of the Ontario  Superior  Court  of  Justice ruled in the case Merrifield v The Attorney General (2017 ONSC 1333), determined that RCMP officer Peter Merrifield had been harassed for a long list of things including running for public office.  Merrifield did not allege that the RCMP discriminated against him in any way.  His claim was simply harassment.

One of the precedents that Justice Vallee cited was Boucher v Wal Mart Canada (2014 ONCA 419).  In that civil case, the Plaintiff was awarded $1.2 million dollars in punitive damages by the jury.  The Court later upheld that harassment was a civil offense, although it did lower the punitive damages to just over $100,000. 

What is the legal standard for a civil claim of harassment?

Judge Vallee wrote that the test for harassment rests on the following four questions:
  • ·         Was the conduct of the defendant(s) outrageous?
  • ·         Did the defendant(s) intend to cause emotional stress or did they have a reckless disregard for causing (the Plaintiff) to suffer from emotional stress?
  • ·         Did (the Plaintiff) suffer from severe or extreme emotional distress?
  • ·         Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?

If the answer to these four questions are found to be answered in the affirmative, both the individual committing the harassment and employer can be found guilty of harassment and assessed damages. 

What does this mean for an employer?

There are a number of laws in place to ensure employers maintain a harassment/violent-free workplace.  Legislation such as Bill 168 in Ontario and Bill 10 in British Columbia mandate specific actions an employer must take or they can be fined.  These laws require organizations to:

·         Have a zero tolerance policy toward workplace violence and harassment;
  • ·         Conduct a yearly risk assessment;
  • ·         Provide employees with a way to report incidences of workplace violence and harassment;
  • ·         Provide mandatory training on what is workplace violence and harassment with records kept of all employees passing the course;
  • ·         Conduct an independent investigation of all allegations of workplace violence and harassment.

In Ontario, Bill 132 goes even further.  It requires organizations to provide an independent 3rd party to both receive incident reports of workplace harassment and conduct an investigation at the employer’s expense.

Now if an employer does not act according to the law, they may also be held civilly responsible for any harassment that occurs.  Not only is an employer looking at potentially tens of thousands of dollars in legal costs and fines but hundreds of thousands of dollars in both legal costs and damages.

What can an employer do to prevent this?

The short answer is follow the law.  Even if your business is not located in Ontario, Bill 132 provides some smart advice.  Your organization should use an independent third party to act as a 3rd party ombudsman.  That way, you will be doing your due diligence and significantly lower your liability.  A truly independent 3rd party does not mean that you are ‘outsourcing’ your psychological health and safety.  It means that you are providing your organization with an enforcement mechanism that is not subject to organizational politics or reporting.  It provides you with an “insurance policy” that an honest third party broker is there to help ensure that you have shown due diligence in preventing workplace violence/harassment.  It does not have to be done by a lawyer.  In fact, it probably should not be done by one as a person can point out conflict of interest if the law firm conducts (or hopes to conducts) additional legal work for the organization.  It can be done inexpensively and, in any case, it will be significantly cheaper than paying legal fees.   The independent 3rd party ombudsman should work closely with both management and employees (through the Joint Health and Safety committee if the organization has one) to create a system that everybody agrees is fair, with the rules laid out clearly for everybody.  It is important when using an independent 3rd party that they have a system that can easily record and report incidents in a discretionary manner.  Also, it is important that this system maintain a history of all reported incidents. They must be trusted by all sides to be discrete, fair and competent.  If not, you are simply opening yourself up to further liability.


Michael Rosenberg is the President of WPV Corp., a company that develops technology-based solutions for workplace violence compliance.  He is the author of The Flexible Thinker® , co-author of The Flexible Thinker® Guide to Extreme Career Performance and the lead author of Best Practices of Employee Retention.

Saturday, September 17, 2016

NEW LEGISLATION UPDATE - BILL 132 IS NOW LAW


The Ontario Government recently introduced Bill 132.  Bill 132 is an amendment to the Occupational Health and Safety Act (the “OHSA”).  The Bill amends  the definition of “workplace harassment”  to include workplace sexual harassment.  Because this is an amendment to the Occupational Health and Safety Act (OSHA) and provides a definition of sexual harassment.

What does it mean to you?  What are the new employer obligations under the law?  Click here for an overview of what this new law means and what are an employer's obligations under the law.

Thursday, January 21, 2016

Once is a Mistake, Twice is a Choice


The Ontario Ministry of Labour will be doing a second, follow up blitz for employment standards.  In addition, they will be doing a blitz on mandatory education and training for workplace health and safety.  This list is right here.  You can read it yourself.  With the WPV SimpleCompliance software it is so easy and inexpensive to stay compliant and we can help you with these audits.  So many businesses define insanity - they keep doing the same thing over and over again and hope for a different result.  It reminds me of the line by Albert Einstein.  When asked what is the difference between genius and stupidity, he responded that genius has limits!  I know for #smallbusiness it is enough just to survive, so why not find inexpensive tools to help make your compliance simple.  It is a LOT cheaper than either a lawyer or a fine.  Less time consuming too.

Wednesday, January 20, 2016

78% of Businesses Found Not in Compliance with Law During Labour Blitz!

I wish I was more surprised at this.  The Ministry of Labour in Ontario during a recent blitz fined 78% of the businesses they inspected for employment standards violation.  This is the price of being reactive instead of proactive.  It is very difficult to run a business and to be aware of what it takes to be compliant.  That is why we created WPV.  The biggest problem with so many businesses is that they are reactive and not preventative.  Eventually it comes back to you.  The idea that 'we can't afford' prevention means you will be paying a larger price later for reaction.  That price does not only come in government fines during blitzes but also manifests itself in lawsuits and tribunal hearings.  This doesn't even account for the price in terms of hours, loss of productivity and stress in having to defend yourself and your business.  As the saying goes - an ounce of prevention is worth a pound of cure.  People really don't think they are going to get caught.  The problem with that is that experience has shown that, over time, we all are held accountable.  Ignorance of the law is no excuse!

Tuesday, January 19, 2016

The Most Common Workplace Lawsuits

Great article in Small Business magazine about the most common lawsuits in business.  I am sure you can guess what they mainly revolve around.  One thing to think about is that a workplace lawsuit not only costs an organization tens of thousands of dollars in legal fees, but it also has a direct cost in productivity, time and stress.  As they say - an ounce of prevention is worth a pound of cure.

Harassment versus Non Harassment - Understanding the Difference





One of the most difficult areas for an investigator, much less a manager, to discern is when a situation escalates to the level of harassment.  Normally harassment means that more than one event has taken place that, through repetition, is intended to torment, undermine, frustrate or provoke a reaction from that person.  It is the repetition itself, more than a single event, that creates the harassment.  For instance, John calls Jane 'stupid' for something she has done. If it was a one time only matter, it would not be considered harassment.  If, however, John kept calling Jane stupid all the time and.or constantly belittles her in public , it would be considered harassment.  By calling her stupid repeatedly, John is either tormenting or undermining her through repeated action.  

A single incident, however, can be considered harassment when it is shown to have a a severesignificant and lasting impact on the individual.  An example of this may be a direct threat of retaliation against the individual if they do not do something.  For instance quid pro quo, which is a form of sexual harassment, takes place when a person in power expects sexual favors in return for special treatment.  This single incident would be considered sexual harassment.  Another example of a single incident being considered harassment is when there is a threat of physical or psychological violence.  I'm going to kick your butt if you don't do something or Maybe I'll tell so and so what you said about them would constitute harassment. 



What Constitutes Harassment

A useful guide to help understand harassment can be found from the Canadian government.  In order to claim harassment, all of the following conditions must be met: 


  • The respondent displayed an improper and offensive conduct including objectionable acts, comments or displays, or acts of intimidation or threats, or acts, comments or displays in relation to a prohibited ground of discrimination;
  • The behavior was directed at the complainant;
  • The complainant was offended or harmed, including the feeling of being demeaned, belittled, personally humiliated or embarrassed, intimated or threatened;
  • The respondent knew or reasonably ought to have known that such behaviour would cause offence or harm;
  • The behaviour occurred in the workplace or at any location or any event related to work, including while on travel status, at a conference where attendance is sponsored by the employer, at employer sponsored training activities/information sessions and at employer sponsored events, including social events; and
  • There was a series of incidents or one severe incident which had a lasting impact on the individual. 
It is important to note that in the case of sexual harassment , a single incident may be viewed to be more significant when the relationship at work is one where the person accused of harassment has influence or power over the person making the accusation with regard to career advancement, performance review, absenteeism, day to day management of activities, work assignments and the carrying out of progressive disciplinary measures.


What Does Not Constitute Harassment

Just as it is important to understand what constitutes harassment, it is also important to understand what does not constitute harassment.  Here is a partial list of some of the things that do not constitute harassment:


  • Management's right to manage.  This means that management does have a right to manage such things as the day-to-day operations, work performance, absenteeism, delegation of tasks, reference checks, the application of discipline, up to and including termination. 
  • Workplace conflict.  People argue and have differences.  Conflict alone does not equal harassment.  The catch here is that if no steps are taken to resolve the conflict, it could easily lead to harassment.  
  • Work related stress.   Sometimes there is increased stressed at work and nerves may be frayed.  Although the accumulation of stress factors may increase the risk of harassment, a stressful work environment does not constitute a form of harassment. 
  • Difficult conditions of employment.  Some jobs and  professions are by their nature difficult and may create conflict.  This is especially true during times of change when  a number of issues arise.
  • A single or isolated incident. This may be an isolated inappropriate remark or having an abrupt manner.  
  • A social relationship welcomed by both individuals.  The key part of sexual harassment is that it is unwelcome attention by the complainant.  An office romance that goes bad does not constitute harassment unless it was done so under duress or threat.  
  • Friendly gestures among co-workers such as a pat on the back.  In a number of cultures a kiss on the cheek is a form of greeting.  This in and of itself does not constitute harassment.  


Some Questions to Ask Yourself 

Here are some good questions to ask yourself if you think you are being harassed (h/t Government of Canada):
  • What was the context in which the incident(s) took place?
  • Was the behavior improper?
  • Was the behavior directed at me?
  • Was I offended by the behavior?
  • Did the incident occur within the scope of the Policy?
  • Was this the first incident or is it a series of incidents?
  • What is my work relationship with this individual?
  • Are individuals doing things, saying things to make me feel uncomfortable?
  • Would a reasonable person well informed of all the circumstances and finding himself or herself in the same situation as yours view the conduct as unwelcome or offensive? The behavior in question is not only assessed by the impact or effect on yourself, but it is also assessed against a reasonably objective standard.
  • Did the behavior exceed the reasonable and usual limits of interaction in the workplace? Would a reasonable person be offended or harmed by this conduct?
  • As I describe and evaluate my work environment, are there other factors contributing to the situation (level of stress, workload, professional constraints, etc.)?
  • Am I being singled out and treated differently than my colleagues, being given the “silent treatment”?
  • Is the incident related to my work performance?
  • Am I being criticized regularly even though my standards have not changed and my performance has always been satisfactory or better?
  • Am I being blamed for mistakes I believe are not my fault?
  • What impact(s) and/or consequences did this incident(s) have on me?
    • Physically?
    • Emotionally?
    • Professionally?
  • Are the working relationships different from any I have previously experienced?
  • Are individuals putting me at risk in some way?
  • How would this behavior be perceived by other work colleagues?
  • Are there other factors in my life that could impact on my reaction to this event?
  • Is this usual behavior for the individual? Are there any personal or professional circumstances that are contributing to his/her behavior?
  • Have I spoken to the individual and tried to clarify the situation? Have I informed him/her of the impact the situation has had on me?
  • Have I asked him/her to stop the behavior?
  • Has the other person expressed regrets and stopped or has the behavior continued?
  • Have I considered resolving the situation through informal means of conflict resolution, such as a facilitated discussion, coaching or mediation?
  • If I choose to file a complaint, will it be done in good faith, characterized by the intention to honestly inform?
In conclusion, it is important to remember that an allegation of harassment is a serious matter.  In order to properly assess the situation, you have to understand what harassment is and is not to understand if you have fallen victim to it.



Tuesday, December 9, 2014

Jian Ghomeshi and the Problems of a Reactive Culture

When you Google Jian Ghomeshi and CBC, here are a few titles that you might find:

1. Jhian Ghomeshi Investigator May Pass Sensitive Information to CBC Management
2. How did Jian Ghomeshi Happen
3. How He Got Away with It
4. CBC Management Knew of Complaints and Did Nothing

Here is one title you will not see:

How Can you Prevent another Jian Ghomeshi

The fact is that there are lots of Jian Ghomeshi's, Bill Cosby's, Ray Rice's, etc.  In fact there are countless numbers of WOMEN who are bullies and abuse their authority.  Yet they get away with it.  Why?  The answer is very simple.  They have power and there are no structures that are independent that will stand up to them. 

Laws in Ontario like Bill 168 or in British Columbia like Bill 14 are in place to prevent them from happening.  Yet, who will stand up to the bully/harasser/abuser if they are the ones who "sign the paycheck"?  The answer is that you have to create and ENFORCE a culture of respect.  The enforcement has to come from an external party.  If not the government, then an outside organization that can act independently.  If not, you just end up creating a reactive culture.  That is what the headlines represent - they are reactions to what has already happened.  Nowhere is anybody asking what can prevent the next person from abusing their authority.