Canada: Employer Ordered To Pay Aggravated Damages For Failure To Properly Investigate And Discipline Workplace Harassment

Last Updated: May 16 2019
Article by Brad Hallowell

Most Read Contributor in Canada, May 2019

On February 22, 2019, Justice Sossin of the Ontario Superior Court ordered an employer to pay $50,000 in aggravated damages because the employer ignored the plaintiff's workplace harassment complaints, failed to conduct an investigation, and failed to take steps to discipline an abusive co-worker.

The Facts

In Bassanese v German Canadian News Company Limited et al,1 the plaintiff, a 73-year old female clerk with 19 years of service, was verbally harassed by a male co-worker on a number of occasions. On April 17, 2018, the plaintiff made a formal written complaint to the president of the company about her co-worker's conduct. She wrote about "being constantly harassed by [the co-worker] yelling and screaming at me ... telling me that I am an idiot and that I should be fired, etc, etc." She added, "I am sorry Chris. I have never ever filed a complaint but I want you to step in and make sure this never happens again." The president wrote back on the same day, stating, "Sorry to hear that. We're a little short-staffed this week (2 illnesses, 1 sick child and a vacation) but I'll run it by Anne Marie, she's our HR person."

The plaintiff followed up with the president on May 7, 2018 and May 8, 2018. On May 8, 2018, the president responded to indicate that the issue had been brought to human resources and that he would take further steps. No further steps were taken by the president or human resources. Thus, on May 15, 2018, the plaintiff wrote to the president again to complain about the co-worker's ongoing, inappropriate conduct, concluding:

"I am writing to you again to let you know that I am at my wit's end and would like some sort of action to take place. I do not deserve to work in an environment where people are allowed to constantly yell and say inappropriate insults to me. Please look into this matter."

No further action was taken by the employer following the plaintiff's April and May complaints.

On June 21, 2018, the plaintiff alleged that the co-worker slapped her across the face three times. On this occasion, the plaintiff complained to the managing director and a police report was filed. In response, the employer terminated her employment on that same day. The plaintiff was not provided with notice or compensation for the loss of her employment benefits.

On August 24, 2018, the plaintiff brought a claim against her former employer and the co-worker for wrongful dismissal, assault and battery, intentional infliction of mental suffering, aggravated damages, and punitive damages. While the claim against the co-worker was settled out of court, Justice Sossin ordered the employer to pay the plaintiff $194,433.17 for compensation in lieu of notice, aggravated damages, and damages for assault and battery based on the employer's vicarious liability.

Decision Analysis

This decision is noteworthy because Justice Sossin awarded aggravated damages for the employer's failure to investigate harassment or take steps to discipline an abusive co-worker. The plaintiff submitted that a series of actions taken in "bad faith" cumulatively justified aggravated damages. These included:

  1. The employer's failure to remit the plaintiff's statutory benefits under s.57 of the Employment Standards Act, 2000 (ESA);
  2. The employer's failure to launch an investigation on the plaintiff's complaint;
  3. The employer's termination of employment as a reprisal within the meaning of s.50 of the Occupational Health and Safety Act (OHSA);
  4. The employer's failure to provide the plaintiff with a letter of reference or assist in obtaining alternative employment; and
  5. The employer's failure to provide a subsidy for relocation/retraining counselling.2

In Whiten v. Pilot Insurance Co.,3 the Supreme Court of Canada held that aggravated damages are designed to compensate the plaintiff specifically for the "additional harm caused to the plaintiff's feelings by reprehensible or outrageous conduct on the part of the defendant."4

In Honda Canada Inc v Keays,5 the Supreme Court of Canada affirmed the ability of employees to seek aggravated damages in addition to pay in lieu of termination notice. The court set out a two part analysis for when aggravated damages are warranted:

  1. The employer must engage in conduct during the course of dismissal that is "unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive"; and
  2. The employee must prove the "actual damages" caused by the employer's conduct (e.g., damage to reputation, psychological injury, etc.).6

In Boucher v Wal-Mart Canada Corp,7 the Ontario Court of Appeal applied Keays in a case where an award of substantial aggravated damages in the context of a dismissal were upheld. Justice Laskin, writing for the majority, affirmed aggravated damages of $200,000 against the employer, Wal-Mart, based on the following circumstances:

Wal-Mart took no steps to bring an end to Pinnock's misconduct. It did not take Boucher's complaints seriously, finding them unsubstantiated despite substantial evidence from co-workers that they were well-founded. It failed to enforce its workplace policies, which on their face were designed to protect employees from the kind of treatment Pinnock subjected Boucher to. And it threatened Boucher with retaliation for making her complaints, an especially vindictive act.8

Applying Keays and Boucher to the facts of this case, Justice Sossin held that the allegations plead by the plaintiff were "less egregious than those found against Wal-Mart in Boucher."9 However, the employer "ignored her complaint and neglected to investigate the complaint or take steps to address [the co-worker's] inappropriate conduct."10 Thus, Justice Sossin concluded that, "this neglect in the face [of the plaintiff's] heightened frustration and anxiety as the work environment became more toxic warrants aggravated damages."11 The plaintiff was awarded $50,000 in aggravated damages.

Lessons for Employers

This decision demonstrates that it is imperative for employers to conduct a thorough investigation of all workplace harassment and workplace violence complaints. A failure to investigate or take steps to address inappropriate workplace conduct may result in an employer being ordered to pay aggravated damages. This case also serves as a warning to employers that they may be accountable for conduct towards employees that is abusive, unfair, or neglectful.

As a reminder, Ontario's Occupational Health and Safety Act requires all employers with more than five employees to have a policy and a procedure for workplace violence and workplace harassment. Adherence and enforcement of these policies and procedures will help an employer defend against possible claims of aggravated damages.

Footnotes

1 2019 ONSC 1343 [Bassanese].

Ibid at para 40.

3 2002 SCC 18.

Ibid at para 116.

5 2008 SCC 39 [Keays].

Ibid at paras 57-59

7 2014 ONCA 419 [Boucher].

Ibid at para 72.

Bassanese, supra note 1at para 44.

10 Ibid.

11 Ibid at para 45.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions