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.