ONTARIO COURT CONFIRMS: SEXUAL HARASSMENT IS NOT AN INDEPENDENT TORT AND COMPANIES CANNOT BE VICARIOUSLY LIABLE FOR IT

Authors: Elliot Saccucci (Partner), Tahir Khorasanee (Associate) and Amanda Franker-Shuh (Student-at-Law)

 Ms. Maria Incognito alleged that she was sexually harassed and sexually assaulted by Mr. Peter Bromby, Vice President of Sales at Skyservice Business Aviation Inc., both in the workplace and outside the scope of her employment. She brought claims against both Mr. Bromby and Skyservice.

 In response, Skyservice moved under Rule 21.01(1)(b) for an order striking out the allegations against them with respect to vicarious liability for sexual harassment, arguing that this does not disclose a reasonable cause of action.

 On March 22, 2022, the Ontario Superior Court of Justice released its decision, Incognito v. Skyservice Business Aviation Inc., 2022 ONSC 1795. The Court struck out Ms. Incognito’s claim for vicarious liability against Skyservice for the alleged sexual harassment. The other allegations advanced against Mr. Bromby and Skyservice, however, remain before the court for future adjudication.

 This case affirms earlier decisions that sexual harassment is not an independent tort in Ontario, and that companies cannot be vicariously liable for sexual harassment claims.

 The Parties’ Positions

 Skyservice argued that:

 ·         Vicarious liability for sexual harassment is not a recognized tort in Ontario law; and

 ·         The Court’s jurisdiction to deal with damages arising from sexual harassment is ousted by Ontario’s Human Rights Code (the “Code”).

 While acknowledging that a violation of the Code cannot itself be a cause of action, Ms. Incognito argued that:

 ·         S. 46.1 of the Code permits a claim for sexual harassment for additional damages in a civil court if another cause of action grounds the civil claim;

 ·         The Court of Appeal did not close the door on harassment being recognized as a tort in the future (Merrifield v. Canada (Attorney General), 2019 ONCA 205); and

 ·         Current social dialogue regarding power imbalance and gender discrimination in the workplace (i.e., the “Me Too” movement) provides a compelling policy rationale to recognize vicarious liability for sexual harassment as a tort.

 The Decision

 The Court struck Ms. Incognito’s claim for vicarious liability for sexual harassment, noting that:

 ·         The Code expressly excludes vicarious liability for sexual harassment by an officer or employee of a company;

 ·         There is no independent tort of sexual harassment in Ontario; and

 ·         A breach of the Code does not constitute an actionable wrong.

The Court cited the Supreme Court of Canada (Seneca College v. Bhadauria, 1981 CanLII 29 (SCC); Honda Canada Inc v. Keays, 2008 SCC 39) to demonstrate that a common law remedy cannot be pursued when human rights legislation (e.g., the Code) contains a comprehensive enforcement scheme for violations of its terms.

 The Takeaways

 ·         Sexual harassment is not an independent tort in Ontario.

 ·         Companies cannot be held vicariously liable for sexual harassment for acts of employees, agents, or officers.

 ·         As per s. 46.1 of the Code, a party may not seek a civil remedy in court for breach of the Code unless it is sought in connection with another independent civil action.

 ·         Management employees who fail to take appropriate action to prevent discriminatory harassment in the workplace once they become aware of the offending conduct may be personally liable.

 ·         Failing to deal with harassment and thereby creating a poisoned work environment is a violation under s. 5(1) of the Code, for which a company can be held vicariously liable.

 ·         If the individual responsible for harassment is a directing mind of the company, the company can also be held liable for the harassment.

 Companies facing claims for vicarious liability for sexual harassment should seek legal advice from counsel about making a motion to strike the allegation from the employee’s pleadings. Finally, it remains critical that companies take all reasonable steps to prevent workplace harassment (including sexual harassment), by providing training, having appropriate workplace policies, and investigating any incident or complaint of harassment, as required under the Occupational Health and Safety Act and in compliance with obligations under the Code. 

 If you have questions or need assistance, contact Elliot Saccucci at esaccucci@loonix.com and his associate, Tahir Khorasanee at tkhorasanee@loonix.com.