Howard Levitt: Alberta case adds another arrow to legal quiver on workplace harassment

Workplace harassment is harder to prove than many believe

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There is more chatter, seemingly everywhere, about workplace harassment than about anything else in employment law.

Employees have developed the view that any perceived mistreatment is grounds for a claim against their employer. But in reality employees have had little legal protection against most forms of harassment.

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Until now, there has been little effective recourse for employees, despite the claims of the workplace investigation industry which attempts to convince employers to pay them $100,000 or more for their investigation when the employer’s liability generally runs from zero to much less than their fees.

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If the harassment is based on a ground covered by human rights legislation, such as gender, race, or disability, employees will have claims pursuant to human rights legislation. But the vast majority of claims do not relate to those few narrow grounds. “Human rights” seldom applies. Most often, the case is simply one of employers acting badly toward employees that they do not particularly like or that they consider indolent or inefficient.

The traditional recourse in responding to harassment is a constructive dismissal action. But that only applies if the harassment is so serious and repetitive that a court concludes that no reasonable employee should have had to put up with the behaviour and it therefore provides the employee with good cause to resign. Of course, if the employee (or their lawyer) gets it wrong, the employee will have resigned and lost their job, will recover nothing and will then have to pay both their own lawyer’s fees and a portion of the employer’s. Quite a chance to take when most alleged harassment does not meet that test.

An employee might have a claim with the Workers Compensation Board or Workplace Safety and Insurance Board if the employee can show a diagnosable mental injury or illness. But WCB/WSIB payments are far lower than what a court would award and again, the bar is high for any recovery.

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The other potential recourse is in negligence if the employer, knowing of an employee’s particular vulnerability, treated them so abysmally that they foreseeably suffered a breakdown. Again, an extremely difficult case to make.

In considering recourse, there is criminal harassment with an even tougher test (and no compensation for the affected employee) and internet harassment which is limited to the internet. One can also potentially sue for intentional infliction of mental suffering but, again, there is a high bar to qualify.

The courts can provide restraining orders for serious harassment but that is an expensive remedy and, again, unaccompanied by compensation for the victim.

Finally, the Occupational Health and Safety Acts in all provinces prohibit harassment but do not give rise to a lawsuit. They only provide procedural requirements for employers to follow, such as providing information to workers on harassment policies and how to report and investigate harassment, failing which employers can be fined. Scant solace for the affected employee who will recover nothing personally.

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So despite employees’ belief that they have legal protection from harassment, it is an almost empty remedy. Despite this desultory legal history, a ray of hope has just arisen from Alberta in a decision so sensible that other provinces will surely follow it.

In that case, a one-time Calgary mayoral candidate named Kevin Johnston was found to have obsessively harassed a public health inspector named Sarah Nunn over an extended period, calling her a criminal and a terrorist and sharing photos of her and her family on an online talk show while insulting them.

Although the conduct was outrageous, no existing lawsuit provided Nunn any effective remedy. As result, the court in Alberta, recognizing that the existing judicial tools were insufficient, in awarding $100,000 for the harassment itself and recognized the existence of a lawsuit for harassment when the following conditions are met:

1) Repeated communications, stalking or other harassing behaviour;

2) The harasser knew or ought to have known that their conduct was unwelcome;

3) The behaviour impugned the dignity of the victim, would cause a reasonable person to fear for their, or their loved one’s, safety and could foreseeably cause emotional distress; and

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4) The conduct of the harasser caused harm. This harm need not be visible. For example, victims of harassment might engage in self-preservation avoidance behaviour, such as quitting their job, to escape the workplace harassment.

A difficulty which employers face is that they can be vicariously liable for harassment by their employees, particularly management — in other words, they can be sued for the conduct of their employees.

The way that employers must protect themselves against such claims is the same way that they already must protect themselves from harassment allegations under the Occupational Health and Safety legislation — specifically, through robust anti-harassment policies and procedures and ensuring that their employees sign off on them. That way, if harassment does occur, employers can show that they were proactive in educating employees on what constitutes workplace harassment and how to report it. Then, they will have a defence if the employee did not report it and if, better yet, the employee does, they can deal with it immediately.

Employers must think about harassment in the broadest sense possible. This includes education on workplace bullying and updating their social media policies so that everyone understands what is acceptable and what is not. Such measures will also provide grounds to fire for cause employees who harass others. Such measures will also protect employers against human rights and WCB/WSIB claims.

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When a harassment complaint occurs, employers must immediately investigate any allegation internally (not through outside investigators), by interviewing the employee complaining, and any witnesses identified by either party, as well as the accused. They should ask the complainant what action they wish taken to show that the harassment is being treated seriously.

Quite apart from the damages for harassment, additional damages can be awarded against the employer for failure to address the harassment. And now that a claim for harassment has been recognized by the courts (in Alberta but likely everywhere else shortly), the courts can award additional punitive damages against the harasser and any employer that failed to take appropriate action.

Quite apart from the economic costs, a public decision that an employer countenanced harassment in its workplace can be very damaging to its reputation, including its ability to recruit or even retain employees, let alone customers.

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This decision has seen a torrent of clients asking us to review their anti-harassment policies. All employers should be reviewing theirs now.

With employees sensitized to claims of harassment and a court now recognizing it, these simply proactive steps have become indispensable for corporate Canada.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

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