Mar 17, 2017

Are You Entitled to Damages if You are Harassed at Work?

The short answer is in some cases yes.

Damages under the Ontario Human Rights Code

You can obtain damages if you have been harassed because of your race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability, or because of sex, sexual orientation, gender identity or gender expression by your employer or an agent of your employer or by another employee. Depending on the impact of the harassment you could be entitled to $ 20 000 or more damages. We deal with a lot of sexual harassment complaints.

Damages for being subjected to a poisoned work environment

If the harassment you are experiencing is bad enough, you can quit and claim constructive dismissal damages.

An employer who creates intolerable working conditions is sometimes considered to have created a poisoned workplace. Workplaces become poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated.

Except for particularly egregious stand-alone incidents, a poisoned workplace is not created unless the serious wrongful behaviour, which creates a hostile or intolerable work environment, is persistent or repeated.

Damages for the Tort of Harassment

An Ontario judge recently ordered an employer to pay an employee $ 100 000 damages for committing the tort of harassment and another tort.

According to the trial judge in this case, there is a four-part test for proving harassment; namely:

(a)   Was the conduct of the employer toward the employee outrageous?

(b)   Did the employer intend to cause emotional stress or did they have a reckless disregard for causing the employee to suffer from emotional stress?

(c)   Did the employee suffer from severe or extreme emotional distress?

(d)   Was the outrageous conduct of the employer the actual and proximate cause of the emotional distress?

Complaint under the Occupational Health & Safety Act

In addition to claiming damages for being harassed, you can file a complaint under your employer’s Workplace Harassment Policy. The investigation of your complaint must be appropriate in the circumstances. If not, the Ministry of Labour can order your employer to retain a qualified investigator at the employer’s expense.

If you are being harassed and want to know your legal rights, call an employment lawyer.

If you would like to speak to an employment lawyer at the MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.


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