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Ontario court confirms limitations of sexual harassment lawsuits against employers

An Ontario court has confirmed that sexual harassment is not an independent tort in that province, and an employer cannot be held vicariously liable for sexual harassment.

The ruling in Incognito v. Skyservice Business Aviation Inc. was released by the Ontario Superior Court of Justice.

Furthermore, sexual harassment, on its own, is not something an employer can be sued for in court. Employers faced with such claims may be able to have them dismissed at a very early stage.

What is a tort and what is vicarious liability?

A tort is a “civil wrong,” including an act or omission, that gives rise to injury or harm to another person. For example, a negligent car accident is a tort.

Vicarious liability is when an employer is liable for one of its employees’ wrongdoings. When an employer is found to be vicariously liable, the employer is responsible for paying any damages caused by an employee’s act even where the employer did not authorize the act or participate in the wrongdoing.

The onus is on the injured party to prove vicarious liability against an employer. In the employment context, vicarious liability will be established when a three-part test is met:

1. There is an employment relationship between the employer and the person who committed the wrongdoing.
2. The employee commits a tort.
3. The tort occurred within the scope of the employment.

Background

The plaintiff, Maria Incognito, sued her employer, Skyservice Business Aviation and its vice-president of sales, Peter Bombay, for sexual harassment and sexual assault. She asserted that the employer did not provide her with a safe work environment and ignored her complaints about Bombay.

Incognito argued that her lawsuit against Skyservice should be heard by the court, because she was relying upon the court to increase the amount of damages she could obtain for the sexual assault that Bombay committed against her (which was not disputed as being a valid cause of action).

On the other hand, the employer argued that the tort of vicarious liability for sexual harassment is not a recognized tort in Ontario, and that the court’s jurisdiction to deal with damages arising from sexual harassment is ousted by the Ontario Human Rights Code, relying on the Supreme Court of Canada decision in Seneca College v. Bhadauria.

The employer further argued it could not be vicariously liable for Bombay’s sexual harassment because section 46.3 of the Code expressly excludes vicarious liability for sexual harassment by an officer or employee of a corporation and prevents findings of vicarious liability against an employer in respect of claims of sexual harassment.

The court agreed with the employer.

Decision

The court concluded that in applying the Bhadauria principles, the claim of vicarious liability for sexual harassment had no reasonable prospect of success – on the basis that no such cause of action exists in law – and it must be struck.

Additionally, the court ruled that the appropriate forum for Incognito to pursue her claim for sexual harassment was at the Human Rights Tribunal of Ontario.

Bottom line

A breach of Ontario’s Human Rights Code cannot be brought as an independent civil action. This prohibition is intended to prevent individuals from pursuing a common law remedy in circumstances where there is already a mechanism to address the claim through the Code.

Additionally, employers cannot be held vicariously liable for sexual harassment committed by an officer or employee of the company.

It is important to note however, that the conclusion in Skyservice does not completely absolve an employer of liability where it has failed to meet its duties under Ontario’s Occupational Health and Safety Act (OHSA) to provide a safe work environment and/or to investigate and address complaints of workplace harassment. Notably, employees have another avenue to seek redress under the OHSA.

Employers should continue to take all reasonable steps to prevent workplace harassment, including but not limited to providing training, having appropriate workplace policies, and investigating any incident or complaint of harassment as per the OHSA and in compliance with their obligations under the Code.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.