Can an employee in Ontario sue for constructive dismissal, if the reason the employee was forced to leave employment was because of chronic mental stress, caused by workplace bullying or harassment?
According to a 2019 “right to sue” decision from the Ontario Workplace Safety And Insurance Appeals Tribunal, Morningstar v. Hospitality Fallsview Holdings Inc. (Decision No. 1227/19), 2019 ONWSIAT 2324 (CanLII), the answer is “no.”
Does workplace harassment simply “arise from and in the course of” an employee’s employment, or does it actually “relate to” that employment?
That question, as incredibly pedantic as it may appear, was of material consequence to a decision of the Ontario Grievance Settlement Board issued January 23, 2018: OPSEU and Ontario (Ministry of Community Safety and Correctional Services) (Rosati), Re, 2018 CarswellOnt 1017.
In short, the answer to that question drove the analysis as to whether a claim for workplace harassment was compensable pursuant to the newly revised provisions of the Workplace Safety and Insurance Act, 1997.
Is the tort of sexual harassment a recognized cause of action in the Province of Ontario? Put another way, in Ontario, can you sue in court if you are sexually harassed?
Two days ago, on April 16, 2017, I blogged about the case of Merrifield v The Attorney General, 2017 ONSC 1333, released February 28, 2017, in which the Honourable Justice Mary E. Vallee of the Ontario Superior Court of Justice found that “harassment” was recognized as a tort upon which a civil cause of action may be based. (See Ontario Superior Court Awards $100,000 in General Damages for Tort of Harassment.)
Surely, one would think, if you can sue for “harassment” in Ontario’s courts, you can sue for sexual harassment. However, as the case of K.L. v 1163957799 Quebec Inc., 2015 ONSC 2417 (CanLII) demonstrates, few things in law make such sense.
Update: The Court of Appeal for Ontario has since said that employees cannot sue for the Tort of Harassment either. See Tort of Harassment Not Available in Ontario Employment Context.
In a decision that is sure to be relied upon, scrutinized and judicially reviewed, the Ontario Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has found that the prohibition against claims by workers for mental stress to be unconstitutional.
Accordingly, in the case considered below, the WSIAT declined to apply subsections 13(4) and 13(5) of the Workplace Safety and Insurance Act, 1997, the result of which being that an employee who made a claim to the WSIB for benefits following years of workplace harassment might actually receive WSIB benefits.
In a decision released earlier this week, the Court of Appeal for Ontario reduced an award of punitive damages against a Wal-Mart manager from $150,000 to $10,000, and against Wal-Mart itself from $1,000,000 to $100,000. In the same decision, however, the court upheld the award of $100,000 in damages for intentional infliction of mental suffering against the manager, and the award of $200,000 in aggravated damages against Wal-Mart.
