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We need a tort of sexual harassment

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In 2019, the Ontario Court of Appeal (ONCA) released its decision in Merrifield v. Canada (Attorney General)1 reversing a trial court decision and definitively ruling there to be no independent tort of harassment. The plaintiff, an employee of a police force, had made a claim of harassment and bullying which he asserted negatively impacted his career and caused him emotional distress.

In rejecting the creation of a freestanding tort of harassment, the ONCA held that the intentional tort of mental suffering, complimented by myriad statutory and legislative protections under the rubric of occupational health and safety and human rights, already worked to ensure harassment-free workplaces and to provide compensation for emotional harm. The ONCA found that any basis for damages in the employment context should therefore be rooted in a claim for intentional infliction of mental suffering or under emerging workplace policies addressing bullying and harassment. This, in addition to other forms of redress such as the Ontario Human Rights Tribunal (HRTO) – which provides both compensatory and public interest remedies – negated the need for such a tort. Despite it being a matter of judicial discretion, the ONCA held that this case did not call out for the creation of such a novel legal remedy, and that the state of the law was such that the recognition of the tort of harassment would be “more than an incremental” common law change.

For those who have endured workplace sexual  harassment, however, this poses several obstacles. Legal reliance on the tort of intentional infliction of mental suffering is overly onerous; its threshold test is high, requiring a defendant’s conduct to be “outrageous” and “flagrant,” “calculated to produce harm,” and the plaintiff to show s/he/they2  have suffered a “visible and provable” illness. It is often difficult to show such an “illness” as a result of sexual harassment. For example, in Colistro v. Tbaytel,3  the ONCA dismissed an appeal for an employee seeking damages for intentional infliction of mental suffering, despite having been diagnosed with post-traumatic stress disorder (PTSD) and depression related to the sexual harassment, as the plaintiff was unable to prove the defendant knew that the kind of harm she had suffered was “substantially certain to follow.”

When considering the at-times insidious, nuanced, and private nature of sexual harassment – often cloaked in misogynistic innuendo, “joking,” misunderstanding, or “female sensitivity” – little corroborative evidence exists to prove a claim of “outrageous” or “flagrant” conduct. Many who have experienced this conduct choose to remain silent out of fear for their safety, of reprisal, social stigma, or offending the perpetrator. Providing evidence becomes so difficult that a claim will rarely succeed, which only further deters reporting of already under-reported crimes of sexualized harm. And, to conflate workplace bullying or harassment with sexual  harassment is to miss its gendered component and unique, subjective effects on survivors.

The statistics are telling. According to a 2018 Angus Reid poll, 52% of women in Canada have been subjected to sexual harassment in the workplace, and 28% have experienced non-consensual touching at work.4  One in four women have been personally targeted with sexualized behaviours in their workplace, compared to 17% of men.5  It is well documented that these statistics grow worse for those women and gender non-conforming individuals who also identify as BIPOC (Black, Indigenous, and People of Colour), who typically experience intersectional forms of discrimination and gender-based violence at greater rates across all settings.

In Gillian Demeyere’s article published in the Queen’s Law Journal, entitled “Common Law Actions for Sexual Harassment: The Jurisdiction Question Revisited,”6  she argues that courts should still recognize a new tort of sexual harassment on the basis that the harm caused is more than just a form of sex-based discrimination; that gender-specific legislation frames the issue as a denial of equal treatment in employment, and fails to provide victims of sexual harassment with a right to full compensation as found in civil cases for all the losses and harms that result from the sexual harasser’s actions.

Courts have resisted this approach. In Rivers v. Waterloo Regional Police Services Board7 for example, the ONCA refused to certify a class action by police officers on the basis of sexual harassment, instead directing them to advance claims of workplace discrimination or sexual harassment before the HRTO.

As someone who works in this area, it is my opinion that we need a tort of sexual harassment in Ontario – one that contemplates the pervasive and secretive nature of this conduct, the many deterrents to reporting it, the overly burdensome legal test for intentional infliction of mental distress that renders successful outcomes unlikely, and that offers the full spectrum of compensation for survivors. Properly investigating and characterizing sexual harassment may inform the scope and prospects for success of future claims – ones which will hopefully demand the creation of such a novel legal remedy.

1 2019 ONCA 205 (CanLII).

2 “They” is intended to be an all-encompassing term for those individuals who identify as non-binary or on the gender spectrum.

3 2019 ONCA 197 (CanLII).

4 “#Metoo: Moment or movement?” (February 2018), online: Angus Reid Institute <https://angusreid.org/me-too/>. Further statistics from Statistics Canada on “Harassment in Canadian workplaces” can be found here: Darcy Hango and Melissa Moyser, “Harassment in Canadian workplaces” (December 2018), online: Statistics Canada <https://www150.statcan.gc.ca/n1/pub/75-006-x/2018001/article/54982-eng.htm>

5 “The Facts About Sexual Assault and Harassment in Canada” (November 2021), online: Canadian Women’s Foundation <https://canadianwomen.org/the-facts/sexual-assault-harassment/>

6 Gillian Demeyere, “Common Law Actions for Sexual Harassment: The Jurisdiction Question Revisited” (2002-2003) 28 Queen’s Law Journal 637 (heinonline.org)

7 2019 ONCA 267 (CanLII).

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