Harassment under the Human Rights Code and the Occupational Health and Safety Act (OHSA)
“Harassment in employment”, defined in s.5(2) of the Ontario Human Rights Code, requires a connection between (a) being harassed and (b) one of the protected grounds, namely race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. Without that connection, the Human Rights Tribunal has no authority to hear the case. This was recently stated in Walsh v. Maintenance & Construction Skilled Trades Council, 2011 HRTO 2243 (CanLII):
[12] The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in the Application, the applicant must be able to prove, on a balance of probabilities, a link between the respondents’ alleged actions or inactions and a Code ground.
In 2009 the Occupational Health and Safety Act (OHSA) was amended by adding new sections on “workplace violence” and “workplace harassment”.
The relevant provisions on workplace harassment are as follows:
32.0.1 (1) An employer shall,
(a) prepare a policy with respect to workplace violence;
(b) prepare a policy with respect to workplace harassment; and
(c) review the policies as often as is necessary, but at least annually.
(2) The policies shall be in written form and shall be posted at a conspicuous place in the workplace
32.0.6 (1) An employer shall develop and maintain a program to implement the policy with respect to workplace harassment required under clause 32.0.1 (1) (b).
(2) Without limiting the generality of subsection (1), the program shall,
(a) include measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor;
(b) set out how the employer will investigate and deal with incidents and complaints of workplace harassment; and
(c) include any prescribed elements.
32.0.7 An employer shall provide a worker with,
(a) information and instruction that is appropriate for the worker on the contents of the policy and program with respect to workplace harassment; and
(b) any other prescribed information.
Though perhaps stating the obvious, these sections do not require employers to provide a workplace that is free from harassment.
In fact, the leading decision from the Labour Relations Board, Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB), noted that the OHSA specifically omits an obligation to prevent workplace harassment. Even when there is a workplace harassment policy in place, the Labour Relations Board does not have the authority to intervene if an employee is unsatisfied with how his/her employer handled the investigation of his/her complaint. The only real power that the Labour Relations Board has under the OHSA is to look into situations where an employee is penalized (e.g., fired) for asking his/her employer to meet its obligations under the OHSA, such as the employer’s obligation to create a workplace harassment policy. In that situation, the employee can make an application to the Labour Relations Board under s.50 of the OHSA.
The Labour Relations Board in Conforti did provide some suggestions for possible recourse: “Individuals who find themselves in situations that the Board cannot remedy will usually have other options, via a grievance or a court action” (para 18).
Due to the required causal connection between the workplace harassment and one of the protected grounds under the Human Rights Code, and the very limited powers of the Labour Relations Board under the OHSA to handle workplace harassment cases, commencing a court action for constructive dismissal due to workplace harassment may be the only way to proceed in most cases.
Court cases on Harassment and Constructive Dismissal
In Strizzi v. Curzons Management Associates Inc., 2011 ONSC 4292 (CanLII), the court reviewed all the evidence presented and had to decide between the plaintiff’s argument (i.e., constructive dismissal) and the defendant’s argument (i.e., Strizzi had resigned). The evidence indicated that one of the owners was a bully, and that Strizzi was constructively dismissed. In paragraph 48, Justice Aikten wrote:
Although disagreements, disappointment, criticism, disciplinary action, and difficult –even heated – exchanges are common and expected aspects of employment relationships, and anger and frustration may be expressed at those times, employers do not have the right to harass, humiliate, belittle and berate employees as they go about their responsibility of managing and supervising them. They do not have the right to yell and swear at employees and call them “every name in the book”. When employers carry matters to this extreme, they risk the employee reasonably concluding that continued employment is intolerable.
In another case, McMillan v. Selectrucks of Toronto Inc., 2011 ONSC 6128 (CanLII), Justice Corbett summarized some of the case law on harassment and constructive dismissal, stating in paragraph 77:
[…] a manager cannot subject an employee to harassment that renders competent performance of work impossible. Put another way, mistreatment that is motivated by a passive aggressive desire to end the employment relationship can amount to constructive dismissal.
That being said, the threshold for harassment to reach the point of constructive dismissal appears to be quite high. In McMillan, the plaintiff relied on many incidents where he felt bullied and harassed; however, the court found most of these incidents were “trivial banter”, valid “though harsh” criticism, or “isolated inappropriate behaviour”. In the end, the plaintiff was unsuccessful at convincing the court that he was constructively dismissed due to workplace harassment.
James Anderson