New Developments in Harassment and Poisoned Environment Jurisprudence in Ontario
The month of June, 2017 was full of promising decisions from the Ontario Human Rights Tribunal with respect to workplace harassment and poisoned environment. In Gricken v Andriano, the Tribunal awarded $20,000 to a complainant whose landlord persistently harassed her on the basis of sex. In George v 1735475 Ontario Limited, the Tribunal also awarded $20,000 to the complainant, this time based on a poisoned work environment on the basis of race.
The two Tribunal decisions come on the heels of the Ontario Superior Court’s decision in Merrifield v The Attorney General. This decision is unique in that the Court found that harassment is an independent, actionable tort in Ontario. This is in contrast to the Ontario Human Rights Code, which restricts harassment claims to those where harassment is on the basis of a protected ground, such as the complaint on the basis of sex in Gricken. Merrifield opens the door to complaints where the harassment is not based on any protected ground.
These decisions are encouraging in their broad, purposive interpretation of poisoned work environment provisions of the Code, as well as harassment both under the Code and independently. Bakerlaw welcomes the continued development of these important human rights areas.
Update: In 2019, the Ontario Court of Appeal (ONCA) overturned the Superior Court’s decision in Merrifield. The Court of Appeal ruled that there is currently no basis for the tort of harassment. However, this decision does not mean that employers are released from their duty to create a safe and harassment free workplace. Workplaces must continue to provide harassment-free environments, and employees may still have recourse through the Ontario Human Rights Code if they experience harassment or poisoned workplace environments. You can read the Court of Appeal’s decision here.
