What to do if you experience workplace harassment, post-Merrifield

In a recent judgment, the Ontario Court of Appeal overturned a lower court decision and held that there is no independent tort of harassment in Ontario. The Court explained that there was no support in the case law in Canada or internationally to extend the law to recognize this new tort. This judgment has left many Ontario employees wondering – what recourse do I have now, if I experience workplace harassment? This post will explore some of the possible options you may still have to pursue your rights, depending on your particular circumstances.

Discriminatory harassment – human rights complaint

Is the workplace harassment you are experiencing based on a prohibited ground of discrimination? For example, is it harassment based on your sex, race, age, or disability? If so, you could bring an Application to the Human Rights Tribunal of Ontario, alleging that you have experienced discrimination and harassment in the course of your employment. If the Tribunal finds in your favour, you could be awarded monetary compensation, reinstatement to your employment if you’ve been terminated, and systemic orders against your employer to comply with human rights legislation going forward.

Workplace harassment in a unionized environment – grievance

Are you a unionized employee? If so, you could talk to your union about filing a grievance about the workplace harassment. Many unionized workplaces have collective agreement protections against harassment, or employer policies prohibiting harassment in the workplace, that can form the basis of a grievance. Harassment grievances are often challenging to succeed in, but if successful, an arbitrator has broad discretion to award an appropriate remedy.

Failure of employer to conduct harassment investigation – Ministry of Labour complaint

​Did you ask your employer to investigate the harassment incident, and the employer failed to do so? If so, you could file a complaint with the Ministry of Labour. All Ontario workplaces have obligations to implement appropriate harassment policies and programs under the Occupational Health and Safety Act, and a Ministry of Labour inspector could order the employer to comply with the Act if it has failed to do so. However, this avenue of recourse is limited, as a Ministry inspector cannot investigate whether workplace harassment actually occurred, and cannot award any individual remedies to an employee.

Harassment leading to resignation – claim for constructive dismissal

Was the harassment so severe that it led you to resign from your employment? If so, you may be able to pursue a claim for constructive dismissal in court. This claim requires conduct by your employer that is inconsistent with an intention to continue to be bound by your employment contract, including creating a toxic work environment due to harassment. If successful in a claim of constructive dismissal, a court may award you damages similar to what you would receive if your employment had been wrongfully terminated.

Flagrant or outrageous harassment – claim for intentional infliction of mental distress

Depending on the severity of the workplace harassment, you may still have a tort claim available in the courts. In Merrifield​, the Ontario Court of Appeal noted that the tort of intentional infliction of mental distress still exists in the employment context, and is available in situations where someone like Merrifield would seek to claim damages for harassment. The test for intentional infliction of mental distress is stricter than the test the lower court had articulated for harassment, however; it requires conduct that : a) is flagrant and outrageous ; b) is calculated to produce harm; and c) results in visible and provable illness. This is a relatively high threshold to meet, but if it can be met, it could result in an award of general damages.

If all else fails – attempt to revive the tort of harassment?

Curiously, the Ontario Court of Appeal left the door open to accept the existence of the tort of harassment in the future. The Court held that it did “not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts”. The Court did not elaborate on what those appropriate contexts might be. Accordingly, if none of the above avenues of recourse apply, but the claim for workplace harassment is compelling based on the evidence, it may be worth revisiting the potential existence of this tort.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]