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Posts tagged: Workplace Harassment

WSIB Benefit Changes Effective January 1, 2018

By , January 11, 2018 11:29 am

Claiming benefits through WSIB because of harassment or bullying at work just got much easier. Until very recently, the Workplace Safety and Insurance Act only allowed employees to claim workers compensation benefits if they experienced traumatic mental stress at work. This was very difficult for employees to prove.  The law said that the stress had to be brought on by an event that was sudden and unexpected, such as seeing a fatal accident at work.

As I wrote previously, in this blog, the law was found to be unconstitutional. Employees who experienced chronic physical illness could receive benefits.  However, those who developed chronic mental illness could not.  This treated employees differently on the basis of disability, which is not allowed.

The Ontario government has now changed the law.  Employees can seek benefits for both chronic and traumatic mental stress that arises because of work.  

 

What does this really mean?

This change is very significant. Employees who became sick from harassment at work, now have another avenue to seek redress and compensation.  The change in the law recognizes that issues at work can affect employees’ mental as well as physical health.

Employees will need to show that a regulated health professional, such as a family physician, has given them a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders. They will also need to show that they experienced substantial work-related stressors like bullying/harassment which caused or significantly contributed to the chronic mental stress.

If an employe experienced chronic mental stress from work at any time since April 29, 2014, and has not filed a WSIB claim, she still can.

The changes to the legislation are also clear that managerial decisions which cause mental stress are not covered.  If the employee experienced chronic mental stress as a result of a demotion, transfer, discipline or termination, he will not likely qualify for WSIB benefits.

If you have experienced mental stress because of work and are considering your legal options, you should consult a lawyer or contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to assist you.

 

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Are You Entitled to Damages if You are Harassed at Work?

By , March 17, 2017 10:22 am

The short answer is in some cases yes.

Damages under the Ontario Human Rights Code

You can obtain damages if you have been harassed because of your race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability, or because of sex, sexual orientation, gender identity or gender expression by your employer or an agent of your employer or by another employee. Depending on the impact of the harassment you could be entitled to $ 20 000 or more damages. We deal with a lot of sexual harassment complaints.

Damages for being subjected to a poisoned work environment

If the harassment you are experiencing is bad enough, you can quit and claim constructive dismissal damages.

An employer who creates intolerable working conditions is sometimes considered to have created a poisoned workplace. Workplaces become poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated.

Except for particularly egregious stand-alone incidents, a poisoned workplace is not created unless the serious wrongful behaviour, which creates a hostile or intolerable work environment, is persistent or repeated.

Damages for the Tort of Harassment

An Ontario judge recently ordered an employer to pay an employee $ 100 000 damages for committing the tort of harassment and another tort.

According to the trial judge in this case, there is a four-part test for proving harassment; namely:

(a)   Was the conduct of the employer toward the employee outrageous?

(b)   Did the employer intend to cause emotional stress or did they have a reckless disregard for causing the employee to suffer from emotional stress?

(c)   Did the employee suffer from severe or extreme emotional distress?

(d)   Was the outrageous conduct of the employer the actual and proximate cause of the emotional distress?

Complaint under the Occupational Health & Safety Act

In addition to claiming damages for being harassed, you can file a complaint under your employer’s Workplace Harassment Policy. The investigation of your complaint must be appropriate in the circumstances. If not, the Ministry of Labour can order your employer to retain a qualified investigator at the employer’s expense.

If you are being harassed and want to know your legal rights, call an employment lawyer.

If you would like to speak to an employment lawyer at the MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

Can You Get Damages For Being Harassed at Work?

By , March 7, 2017 5:00 pm

Ontario’s Occupational Health & Safety Act outlaws workplace harassment but an employee cannot collect damages for being harassed at work under this law.

In a recent case, an Ontario judge awarded an employee damages for being harassed.

The tort of harassment has been recognized in Ontario but to my knowledge this is the first time an Ontario judge has ordered an employer to pay an employee damages for being harassed.

What Do You Need to Prove to Get Damages for being Harassed?

According to the judge in this case, here is what you need to prove:

  1. The employer’s conduct was outrageous.
  2. The employer intended to cause you emotional stress or had a reckless disregard for causing you to suffer from emotional stress.
  3. You suffered severe or extreme emotional distress.
  4. The employer’s outrageous conduct was the actual and proximate cause of your emotional distress.

If you have been harassed at work and you are experiencing severe or extreme emotional stress call an employment lawyer to find out whether you may be entitled to damages.

If you would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Increasing Reporting Rates and Preventing Sexual Harassment in Canada

By , November 28, 2014 10:04 am

The prevalence of sexual harassment in Canada has been a hot topic of discussion since the Jian Ghomeshi story broke. There has also been significant analysis on why those who experience sexual harassment do not report it. Missing from this conversation, however, are suggestions on how to reduce harassment and increase the reporting rate.

As employment lawyers who represent both employees and employers here are our recommendations:

Require Employers to Develop and Post a Human Rights Policy, Train All Employees on Human Rights and Implement a Complaint Process

Sexual harassment is an affront to a person’s dignity and self-respect. It is also bad for business because harassment can result in lower employee productivity and higher rates of employee absence and illness. It is, therefore, in the interest of both society and employers to actively discourage harassment, including sexual harassment, in the workplace.

Employers are already required to implement various workplace policies and workplace training. For example, in Ontario, employers are required to prepare and post a health and safety policy and there is mandatory training under health and safety legislation. However, for human rights, creating and posting a policy is optional, as is training. Voluntary compliance does not seem to be working. We, therefore, recommend that the Ontario Human Rights Code (“the Code”) be amended to include similar obligations on employers regarding policies and training.

Where there is a right there should be a remedy. A person who has been harassed should have the right to file a complaint with her employer and obtain redress. Although the Code does not mandate a complaint procedure, failing to adequately investigate can result in higher additional damages. This has been interpreted to mean that the employer must take the complaint seriously, respond promptly and sensitively, ensure the accused is provided details of the allegations and an opportunity to respond, and provide both the accused and the accuser with the outcome of any investigation and the employer’s proposed remedy. Given how few women report sexual harassment, we recommend that the Code be amended to include a mandatory investigation process that includes these elements.

Changes to the Human Rights Complaint Process under the Canadian Human Rights Act

Employees who work for federally regulated entities like Crown Corporations, banks and airlines, can file a sexual harassment complaint under the antiquated Canadian Human Rights Act (“the Act”). We believe it should be updated, just as the Ontario equivalent was in 2008.

Prior to 2008, the Ontario Human Rights Commission would vet human rights applications. Now an employee has the right to take their case directly to the Human Rights Tribunal of Ontario and to a hearing. Federally, complaints are still vetted by the Canadian Human Rights Commission. In 2013, only 96 complaints were referred to the Canadian Human Rights Tribunal under this legislation. We believe that the changes in the Ontario system should be mirrored in the federal system. Similarly, we recommend that the Tribunal website should include a downloadable, clear, online complaint form that can be submitted electronically, as the Ontario Tribunal does.

In addition, a federal employee cannot claim a violation of the Act in a wrongful dismissal action.  This means a person who has been sexually harassed must bring two separate legal proceedings. This is costly and time consuming. We recommend that the Act be amended to allow an employee to add a human rights complaint to a wrongful dismissal action to increase ease and expediency for applicants. Finally, damages are capped at $40,000 regardless of how egregious the violation. We recommend eliminating this cap.

Increases on General Damage Awards

Subject to any cap in the applicable legislation, human rights adjudicators have the power to decide how much an employer is required to pay an employee who is sexually harassed.

General damages for most sexual harassment cases are less than $15,000. Damages of $1,000 have been awarded in cases where graphic language was directed to a woman such as asking her whether she liked “sex from the front or doggy” or telling her she “has nice tits”. After filing a complaint, an employee must attend a three-hour mediation, compile and disclose documents to the employer, and attend a hearing where she is often subject to aggressive cross-examination including questions about whether she somehow encouraged the sexual banter.

If an employee believes that she will likely only receive $1,000, she may feel that going through this difficult and time consuming process is not worth it. Increasing the general damage awards, in some cases, would encourage employer engagement in preventing sexual harassment and increase the likelihood that employees would report incidents and pursue their legal rights, if necessary.

 

If you believe that you have experienced sexual harassment in the workplace, you should seek legal advice. Please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-204-8107 (within the GTA).

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the Macleod Law Firm.”

 

Sexual Orientation Discrimination in Ontario

By , July 22, 2014 3:55 pm

Discrimination can occur in a variety of settings including the workplace. The Ontario Human Rights Code (“Code”) protects individuals from discrimination on the basis of sexual orientation during their in employment.

Protection in employment includes freedom from harassment and discrimination. It also includes the right to be free from a poisoned work environment. Examples of harassment or discrimination include:

  • comments, jokes or innuendos that make an employee feel unwelcome;
  • choosing one interview candidate over another because of known or perceived sexual orientation;
  • heterosexism where employers assume employees identify as heterosexual;

An employer or prospective employer should not ask you questions about your sexual orientation. You should not be disciplined or terminated because of your sexual orientation.

For example, in this leading case the applicant realized that she identified as a lesbian while working at a Christian religious organization. The organization had a morality statement prohibiting employees from engaging in “homosexual relationships”. Ultimately, the employee was terminated. The Human Rights Tribunal of Ontario (“Tribunal”) determined that the employee had been discriminated against and awarded $23,000 for the discrimination: for the mental anguish that she experienced in a poisoned work environment. The Tribunal also awarded lost wages and benefits for a period of nearly two years following the employee’s termination.

For additional information about human rights protection in Ontario, see here.

 

If you believe that you have experienced discrimination because of your sexual orientation, you should seek legal advice. Please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-204-8107 (within the GTA).

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