Does an “inspector” appointed by the Ontario Ministry of Labour pursuant to the provisions of Ontario’s Occupational Health and Safety Act have the right to receive and review the entire, unredacted copy of an independent workplace harassment investigator’s report?
In Wal-Mart Canada Logistics ULC v Gail Stewart, 2020 CanLII 2070 (ON LRB), the Ontario Labour Relations Board held that she does.
Can a worker complaining of workplace harassment who pre-emptively refuses to participate in the resulting investigation because she believes the investigator is unsuitable, ask the Ontario Labour Relations Board to appoint an investigator of the Board’s choosing instead?
In Erin MacKenzie v Orkestra SCS Inc., 2023 CanLII 13891 (ON LRB), the OLRB refused to appoint its own investigator.
Does a lawyer acting as a workplace investigator owe a duty of care to the complainant in the workplace harassment case?
In Mezikhovych v. Kokosis, 2022 ONSC 6480, Justice Howard Leibovich of the Ontario Superior Court of Justice held, on a motion for summary judgement, that they do not.
In the period September to November 2019, six complaints were filed against Ottawa City Councillor Richard Chiarelli with the Integrity Commissioner for the City of Ottawa. The Commissioner investigated and then prepared one report in respect to three of the complaints, which were similar. The Commissioner filed the Report with Ottawa City Council on July 9, 2020. City Council considered the Report on July 15, 2020, accepted its conclusions that Councillor Chiarelli had engaged in acts of misconduct in respect to the three complaints, and imposed the maximum available penalty: suspending Councillor Chiarelli’s salary for 270 days in the aggregate. City Council also adopted a resolution calling upon Councillor Chiarelli to resign from City Council.
Councillor Chiarelli applied to the Ontario Divisional Court for judicial review of the proceedings below. He argued that the Commissioner lacked jurisdiction to investigate the complaints, showed bias against him, and denied the Councillor procedural fairness. He argued that City Council exhibited bias against him. He sought various remedies, including orders quashing the findings and sanctions against him and orders prohibiting the respondents from taking further steps against him respecting the complaints.
In its decision released December 22, 2021, Chiarelli v. Ottawa (City of), 2021 ONSC 8256 (CanLII), the Divisional Court (Morawetz C.J.O.S.C.J., D.L. Corbett and Ryan Bell JJ.):
As a matter of law, can the manner in which an employer dismisses an employee impact the enforceability of a contractual termination provision?
In Humphrey v. Mene, 2021 ONSC 2539 (CanLII), Justice Gina Papageorgiou, after an extensive and thorough review of applicable jurisprudence, held that, in some cases, it can.
Can an employee sue for constructive dismissal if the cause of the employment relationship break down is that the employee was subjected to chronic workplace harassment resulting in injuries otherwise compensable under the WSIB regime?
In a well-reasoned, no-nonsense decision, Morningstar v. WSIAT, 2021 ONSC 5576 (CanLII), the Ontario Divisional Court (Sachs, Backhouse and Kurke JJ.) overturned two earlier decisions of Ontario’s Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), about which I blogged in my post Employees Cannot Sue for Constructive Dismissal Caused by Chronic Mental Stress: WSIAT, and held that one can.
Is it “oppressive” to compel an unwilling complainant in a sexual assault and harassment matter to be examined for discovery when he is not a party to the underlying lawsuit and when his version of events has already been made available to the plaintiff in the form of his written complaint?
In Mohotoo v Humber River Hospital, 2021 ONSC 4894 (CanLII), Master Lisa La Horey of the Ontario Superior Court held that, on the basis of binding case law, the legal answer is that it is not “oppressive.”
Is refusing to apologize to a co-worker, after a company’s finding of your having made inappropriate comments to that co-worker cause for termination? Does it matter if, at the time the direction to apologize was made, the company elected not to terminate your employment at all (let alone for cause?)
In Hucsko v. A.O. Smith Enterprises, 2020 ONSC 1346 (CanLII), the Honourable Mr. Justice G.E. Taylor of the Ontario Superior Court of Justice held that an employer was not justified in summarily ending the employment relationship because the employee refused to apologize (after seeking legal advice) and could not use the previous findings concerning inappropriate comments to later justify the termination.
UPDATE: On October 15, 2021, the Court of Appeal for Ontario allowed the employer's appeal, reversed Justice Taylor's decision, and dismissed the plaintiff's claim. For my summary of that case see: “It's Too Late to Apologize” Court of Appeal Finds Refusal to Apologize For Inappropriate Conduct Just Cause for Termination of Employment
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 the fact that an assault occurs in the workplace automatically trigger the protections of subsection 50(1) of the Occupational Health and Safety Act?
In a case involving a fight at a male strip club, Mazen Jamal Chams Eddin v 938088 Ontario Limited, 2019 CanLII 37953 (ON LRB), Ontario Labour Relations Board Alternate Chair Matthew R. Wilson held that it did not.
Does the failure to respond to a request for a workplace harassment investigation warrant an award of aggravated damages, where the employee is later terminated for complaining about such harassment?
In Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343 (CanLII), the Honourable Justice Lorne Sossin of the Ontario Superior Court of Justice found that it does.
Does the tort of “harassment” exist at Ontario law? And, if not, is it time for Ontario’s court to recognize the existence of such tort? The answer to both of those questions, as provided by the Court of Appeal for Ontario in Merrifield v. Canada (Attorney General), 2019 ONCA 205, is “no.”
What are the consequences for terminating an employee’s employment (for just cause no less) rather than investigating a legitimate complaint of harassment? In the case of Horner v. 897469 Ontario Inc., 2018 ONSC 121, which proceeded before the Honourable Mr. Justice W.D. Newton by way of an undefended trial, the answer was $20,000 in aggravated damages, plus $10,000 in punitive damages over and above the wrongful dismissal award.
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.
On May 17, 2017, the Stronger, Healthier Ontario Act (Budget Measures), 2017, S.O. 2017 C.8 , formerly Bill 127, received Royal Assent. That act, which was omnibus legislation, amended no fewer than 48 statutes, including the Workplace Safety and Insurance Act, 1997. This post will focus on the changes to that statute.
Pursuant to Schedule 33 of the Stronger, Fairer Ontario Act (Budget Measures), 2017, employees eligible for Workplace Safety and Insurance Board (“WSIB”) benefits, are now eligible to make claims for “chronic or traumatic mental stress arising out of and in the course of the worker’s employment”
On December 14, 2017, the Stronger, Fairer Ontario Act (Budget Measures), 2017, S.O. 2017 C.22, formerly Bill 177, received Royal Assent. That act, which was also omnibus legislation, amended no fewer than 110 statutes, including the Workplace Safety and Insurance Act, 1997. This statute further amended the Workplace Safety and Insurance Act, 1997 with respect to claims for chronic or traumatic mental stress.
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.
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In Ontario, is harassment recognized as a tort upon which a civil cause of action may be based? Put another way, can you sue for workplace harassment in Ontario?
While this blog has frequently argued that the answer to that question is likely “no”, in the case of Merrifield v The Attorney General, 2017 ONSC 1333, released February 28, 2017, the Honourable Justice Mary E. Vallee of the Ontario Superior Court of Justice said “yes.”
Do employers have a legal obligation to protect their employees from the vitriol that may be hurled at them via social media? Put another way, is an employer obligated to take positive steps to attempt to protect its employees from being harassed online?
In a labour arbitration award dated July 5, 2016, Toronto Transit Commission and ATU, Local 113 (Use of Social Media), Re, 2016 CarswellOnt 10550 (ON Arb), Adjudicator Robert D. Howe said that the answer to those questions is “yes.”
What is the penalty for embarking on a “campaign of abuse”, intentionally designed to force a disabled employee to quit her job? In a June 2016 decision from the Court of Appeal for Ontario, Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, Ontario’s highest court awarded nearly a quarter million dollars plus costs following the wrongful dismissal of a long-term employee who has harassed and belittled by her employer after losing her hearing.
What constitutes workplace harassment?
Every time I encounter a case of alleged workplace harassment, which is far, far more frequently than anyone outside this practice might think, I harken back to what the Honourable Justice Perell wrote in the case of High Parklane Consulting Inc. v. Royal Group Technologies Limited, 2007 CanLII 410 (ON SC):
[36] It is trite to say that that making a living is a stressful activity and that much of life can be nasty and brutish. Tort law does not provide compensation for all stress-causing and nasty conduct that individuals may suffer at the hands of another, and the elements of the tort of intentional infliction of mental distress that the conduct must be extreme, flagrant, outrageous and calculated to caused harm are the law’s ways of narrowing the ambit of the tort.
In short, there are some behaviours up with which one must put, if I may paraphrase the great Sir Winston Churchill.
But, returning to the point, the law does, at least in theory, prohibit workplace harassment. In the labour context, collective agreements often forbid such behaviour, so what then constitutes workplace harassment?
In a labour arbitration award released April 18, 2016, Fanshawe College of Applied Arts and Technology v Ontario Public Service Employees Union, 2016 CanLII 23226 (ON LA), Arbitrator Michael Bendel defined the answer as follows, “a finding of harassment requires a departure from reasonable conduct.”
The case stands as an important reminder that notwithstanding a written prohibition against workplace harassment, someone still needs to agree that the behaviour complained of rises to that level.
