Top Five Cases of Importance to Ontario Employment Law - 2018 Edition

2018 has been, compared to some other years, relatively quiet with respect to employment law jurisprudence. Sometimes that can be a good thing.

The point of this blog post, however, is to consider what I consider to be the “Top Five Cases of Importance to Ontario Employment Law”. I have produced such a list since 2012:

• 2012
• 2013
• 2014
• 2015
• 2016
• 2017

And so, with another year coming to a close, it is once again time for this Ontario employment lawyer to provide his picks for the Top Five Cases of Importance to Ontario Employment Law!

No Right to Sue Employer for Sexual Assault by Co-Worker: WSIAT

Can an employee sue her employer if she is sexually assaulted at work by a co-worker? In a decision by the Ontario Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), Decision No. 3096/17, 2018 ONWSIAT 1563 (CanLII), the answer was once again, “not if the employee is entitled to WSIB benefits.”

Assessment of Damages in Sexual Assault Cases

What is a reasonable assessment of damages in a civil case of sexual assault? Is the fact that a perpetrator of sexual assault has not been criminally punished a relevant factor in the decision to award punitive damages?

In Zando v. Ali, 2018 ONCA 680 (CanLII), Ontario’s top court adopted the framework for determining damages in a civil sexual battery or assault cases described in Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120 (CanLII), 260 N.S.R. (2d) 257, per Cromwell J.A. (as he then was), and affirmed a lower court’s award of $200,000, made up of general damages of $175,000 and punitive damages of $25,000.

Employers’ Vicarious Liability for Sexual Assault

“Is a taxi company liable for a sexual assault allegedly committed by one of its drivers, absent any fault on its part?” That was the question that the Court of Appeal for Ontario answered in the case of Ivic v. Lakovic, 2017 ONCA 446.

The court’s answer, which affirmed an answer from the Ontario Superior Court, was “no”.

Workplace Harassment “Arises From” but does not “Relate To” Employment

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.