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The rules around workplace harassment are changing. Here’s what you need to know

Andrew Reinholdt - Nelligan O'Brien Payne LLP

Sgt. Peter Merrifield is an RCMP officer with an interest in politics.

In 2005, he ran for the federal Conservative nomination in a southern Ontario riding. According to Sgt. Merrifield, that triggered years of harassment and bullying by his RCMP superiors who were upset with his support of the party’s policies.

He launched a civil lawsuit against his employer and was awarded $100,000 in damages for “harassment and intentional infliction of mental suffering.”

Prior to this year, whether or not an individual could sue for harassment was unsettled. However, Sgt. Merrifield’s case shows that courts will compensate employees when there’s evidence of outrageous employer behaviour.

Laws covering workplace harassment have long been in a state of flux. But in the last few years, there have been several notable developments of which all employees and employers must be aware.

Legislative changes

The Ontario government recently amended the Occupational Health and Safety Act, which applies broadly to all types of harassment, including sexual harassment. Both employers and employees should be familiar with these amendments. Here’s a summary of the changes:

  • A definition of workplace sexual harassment was added;

  • Employers must now consult with employees in the development of workplace harassment policies and programs;

  • Employers must have a mechanism for complaints to be made where the complaint would be against an employee’s superior(s);

  • Ministry of Labour inspectors can order investigations be carried out by third parties at the employer’s expense;

  • Measures must be taken to limit the disclosure of information learned during an investigation, except for the purposes of carrying out the investigation or taking corrective action;

  • The complainant and the alleged harasser (if an employee) must be advised in writing of the results of an investigation and of any corrective action taken;

  • The workplace harassment policy and program must be reviewed at least annually;

  • Workers must be educated on the workplace harassment policy and program; and

  • A new provision has been added (subsection 1(4)) clarifying that not all instances of unwelcome communications from management are considered “workplace harassment.”

Harassment investigations

In light of the above-noted changes, employers and employees must be aware of their obligations throughout a harassment investigation. These investigations need to be done properly, and abide by principles of procedural fairness, as there is always a strong chance a court will scrutinize the investigation.

The Federal Court recently overturned a finding of harassment against a CRTC commissioner because of bias and other procedural failings in a harassment investigation. In Shoan v Attorney General (Canada), the CRTC ordered a harassment investigation after a staff member accused Commissioner Raj Shoan of harassing her via email. In the case, the Federal Court set out several important principles that should be applied to any harassment investigation that all employers should follow:

  • A high degree of procedural fairness is required in a harassment investigation because of the implications to both the harasser and the complainant;

  • If an employer follows a harassment investigator’s findings, it must ensure that the investigation was fair;

  • The investigator must begin the investigation with an open mind;

  • The investigator must not be influenced by the employer;

  • If someone in the investigation alleges the procedure is not fair, the investigator must look into that allegation;

  • The investigator must retain notes and records;

  • The investigator should not look beyond the scope of the complaint;

  • The context is important, and not all workplace conflict amounts to harassment; and

  • The individual who decides for the employer whether or not harassment has occurred must not be biased.

Harassment lawsuits

In the RCMP case mentioned above, Merrifield v the Attorney General of Canada, the Ontario Superior Court finally concluded that someone can, in fact, sue for harassment if he or she meets a four-part test.

To be successful, the judge has to be able to answer yes to the following questions:

  1. Was the conduct of the defendant(s) outrageous?

  2. Did the defendant(s) intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional distress?

  3. Did the plaintiff suffer from severe or extreme emotional distress?

  4. Was the outrageous conduct of the defendant(s) the actual and proximate cause of the emotional distress?

Over the course of several years, Mr. Merrifield’s relationship with his superiors went from bad to worse, in spite of getting many positive evaluations for his work. Eventually, he was transferred out of his job, in a way that the Court found to be unjustified and punitive. The Court also found that the RCMP acted on incorrect assumptions and, prior to transferring Mr. Merrifield, failed in its obligation to rationally consider his actions.

In this case, the Court decided that the above test was made out: the defendants’ conduct towards Mr. Merrifield was outrageous; they had a reckless disregard for causing him to suffer emotional distress; his emotional distress was severe; and, finally the defendants’ outrageous conduct was the cause of Mr. Merrifield’s emotional distress.

After taking all of the RCMP’s actions into account, the Court ordered it to pay Mr. Merrifield $100,000 to compensate for the harassment and mental suffering he experienced.

The Courts have made it clear that they will have to find evidence of outrageous employer behaviour before employees have a right to sue for harassment. But when an employer behaves this badly, Courts will compensate them for the damage caused.

Importantly, if the harassment was based on a human rights ground (i.e., disability, gender, sexual orientation, etc.), an employee may not be able to sue for the tort, instead having to rely on human rights principles in filing a complaint or suing civilly (depending on the case).

Harassment is an issue we are seeing more regularly in our practice. We work with individuals who have been harassed, have been accused of harassing a colleague, and employers seeking advice on how to navigate a harassment complaint.

Have more questions about workplace harassment? Contact our employment law group.

Andrew Reinholdt is an associate lawyer with Nelligan O’Brien Payne LLP, and a member of the firm’s employment and labour law practice groups.

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