Sexual harassment is a specific form of workplace discrimination constituting conduct (such as jokes or comments) relating to sex, sexual orientation, gender identity or gender expression that is unwelcome or ought to be known to be unwelcome. 

This article examines some of the legal options for dealing with sexual harassment in the workplace. Specifically, we look at whether employers can be held liable for a civil wrong of sexual harassment and the other options available to employees, such as applying to the Human Rights Tribunal of Ontario (HRTO).

Employees can apply to the Human Rights Tribunal of Ontario seeking a remedy for sexual harassment

Under section 7 of the Ontario Human Rights Code, employees have a right to freedom from sexual harassment in the workplace by their employer, employer agent, or another employee. They may apply to the HRTO, and the matter will proceed to a hearing if they do not reach a settlement. If harassment is proven, the adjudicator can grant remedies, including the payment of monetary compensation.

Importantly, under the Human Rights Code, there is no vicarious liability against an employer in respect of sexual harassment claims. This means that complaints must be brought against the individual who committed the sexual harassment, for example, a specific employee – not against the company. 

Employees can allege sexual harassment in the context of an independent civil action

Under section 46 of the Human Rights Code, a court is able to order monetary compensation or restitution in a civil proceeding where a Human Rights Code right has been breached. However, a person is not able to commence a civil action solely based on an infringement of a Human Rights Code right – they need to have another cause of action.

In the context of workplace sexual harassment, this means that employees may be able to use incidents of sexual harassment to prove wrongful dismissal or constructive dismissal and as a component of this civil claim, also establish a breach of their Human Rights Code right to freedom from sexual harassment. 

Employers have obligations under the Occupational Health and Safety Act

Under the Occupational Health and Safety Act (OHSA), employers have a range of duties relating to the prevention of sexual harassment, including the obligation to:

• provide information, instruction and supervision to a worker to protect their health and safety, and take every precaution reasonable in the circumstances for their protection;
• have a policy with respect to workplace sexual harassment; and
• investigate all complaints of sexual harassment.

Inspectors from the Ministry of Labour, Training and Skills development enforce the OHSA, and it is possible for employers that fail to comply with their obligations to be prosecuted. 

Is there an independent tort of sexual harassment?

A question remains whether an employee can claim damages from an employer in court proceedings for an independent civil wrong of sexual harassment. 

This issue was raised in the recent decision of the Ontario Superior Court of Justice in Incognito v Skyservice Business Aviation Inc.

Employee sued employer for vicarious liability for sexual harassment

The plaintiff employee worked for the defendant employer Skyservice. She alleged that she was subjected to sexual harassment, which caused her to undergo breast reduction surgery to lessen herself as a target. The plaintiff also claimed that the employer failed to provide her with a work environment free from sexual harassment or investigate her complaints. 

The employee sued the employer for vicarious liability for sexual assault and vicarious liability for sexual harassment. She also sued the company’s vice president of sales personally. 

Employee argued that the claim was not solely for a Human Rights Code violation

The employer sought to have the claim against it for vicarious liability for sexual harassment struck out on the basis that it did not disclose a reasonable cause of action because the Human Rights Code does not permit civil actions based solely on an infringement of a Code right.

The employee acknowledged that the Human Rights Code could not solely be a cause of action but argued that sexual harassment accompanied and should increase the damages for the tort of sexual assault. The plaintiff also claimed that there was a compelling policy rationale, considering the “Me too” movement, to be able to sue for vicarious liability for sexual harassment.

Ontario courts have held that sexual harassment is not an independent tort

Justice Vermette explained that because the Supreme Court of Canada has held a plaintiff is unable to pursue a common law remedy when human rights legislation contains a comprehensive enforcement scheme, and the Code deals with sexual harassment, Ontario courts have previously held that sexual harassment is not an independent tort capable of supporting a cause of action. 

Employer cannot be vicariously liable for sexual harassment 

Her Honour turned to the facts of this case. She decided that, as there was no independent tort of sexual harassment in Ontario, the plaintiff’s claim of vicarious liability for sexual harassment against the employer had no reasonable prospects of success and must be struck.

However, Justice Vermette explained that the Human Rights Code provision ruling out vicarious liability only applied to alleged infringements of certain named sections, including the section 7 prohibition on sexual harassment. 

Given that the plaintiff had also claimed against the employer for vicarious liability for sexual assault, as part of that cause of action, it may be possible to claim compensation under the Code for infringement of a right outside section 7. Her Honour said that the facts, as pleaded by the plaintiff, could potentially support such a claim, opening the door to tacking on a Code claim to her vicarious liability for sexual assault action. 

Contact Haynes Law Firm in Toronto for Advice on Sexual Harassment

The legal options for seeking a remedy for sexual harassment are complex, and the best route depends on your circumstances. Haynes Law Firm assists employees in obtaining the compensation to which they are entitled if they have been a victim of sexual harassment. We also help employers defend specific claims and make sure they meet their obligations to maintain a harassment-free workplace. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.