Thursday, September 14, 2017


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.

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