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A new remedy for non-sexual workplace harassment: The class action

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Workplace Investigation Fundamentals
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In the recent past there have been several class actions involving individuals who have experienced sex-based discrimination, sexual harassment, and sexual abuse in workplaces and institutions. But what about the type of harassment that we most often see as workplace investigators – bullying, intimidation and abuse of one’s authority that does not target someone based on a protected ground of discrimination? Can there be a class action united for those who experience of this type of behaviour? Possibly.

On March 15, 2019, the Ontario Court of Appeal released its decision Merrifield v. Canada (Attorney General) in which it clarified that there is no standalone tort of harassment. This case was based on a claim by a sergeant of the RCMP against various managers for what was described in a letter quoted in the trial court decision as “false criminal allegations…punitive transfers…false code of conduct investigations and…threats by Senior Officers.” Essentially, Sergeant Merrifield claimed that he was experiencing a generic form of workplace harassment by being the target of various intimidation tactics and demotions. The trial court decision does not provide a thorough explanation of how his complaint was addressed, which brings to light an important question: was there an effective complaint mechanism for workplace harassment?

This question forms the heart of a recent case involving a motion to certify a class action – Greenwood v. Canada, 2020 FC 119. Coincidentally, this case also relates to harassment within the RCMP. The motion was based on a claim of “systemic negligence in the form of bullying, intimidation, and general harassment.”  To substantiate their complaint, the representative plaintiffs filed several reports, including a 2014 report by the Honourable Grant Mitchell, Senator, and the Honorable Judy Sgro, Member of Parliament (MP), titled: Shattered Dreams: Addressing Harassment and Systemic Discontent within the RCMP, and the Civilian Review and Complaints Commission’s April 2017 Report into Workplace Harassment in the RCMP. These reports concluded that internal complaint mechanisms for workplace harassment were woefully inadequate.

The Crown argued that not only was the subject matter of the class action mere “workplace disputes” that could be addressed through internal complaint mechanisms, it was “plain and obvious” that there was no reasonable cause of action. Citing the Merrifield decision, the Crown reiterated that there is no tort of harassment. But the Court found that this was too narrow of a reading of the claim. In the Court’s view, the class action was based on the RCMP’s systemic negligence in relation to how it addressed bullying, harassment and intimidation and systemic negligence in relation to the very existence of such conduct. In doing so, the Court found that there was a reasonable cause of action for the purpose of certifying the class.

In addition to this case bringing to light a new remedy for workplace harassment that is has not been adequately addressed by employers and institutions, this case reminds us that it is not only the investigation into complaints that we need to focus on, but the entire complaint process as a whole. Do the current complaint mechanisms and investigations address the problem of workplace harassment? An employer should have the knowledge and confidence to respond with a definite “yes.” If not, a deeper inquiry might be needed beyond specific complaints into harassment. Workplace assessments that examine the effectiveness of complaint mechanisms and the existence of unreported workplace harassment may be a valuable preventative measure that precludes a future class action.

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