In Ontario, legislation like the Occupational Health and Safety Act (“OHSA”) and the Ontario Human Rights Code (the “Code”) provides protection against harassment in the workplace. Workplace harassment is considered any unwanted actions, comments, or signs that make someone feel uncomfortable, scared, or threatened at work. This can include verbal comments, physical contact, psychological harassment or sexual harassment.
What laws protect employees from workplace harassment in Ontario?
So when is feedback considered harassment at work? There is a fine line between workplace harassment or bullying and constructive feedback. Courts must strike a balance between what meets the above definition of harassment and what are simply reasonable business decisions. Things like constructive feedback surrounding an employee’s performance or even discipline that is based on legitimate concerns surrounding an employee’s conduct would likely not be considered harassment. The potential for harassment comes into play if any of the above are conducted in an abusive or humiliating manner.
What can we learn from the Boucher v. Wal-Mart case?
A leading case on this topic is Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 where the Ontario Court of Appeal (“ONCA”) awarded an unprecedent amount of damages for a case of workplace bullying.
In this case, Meredith Boucher worked for Walmart for almost 10 years. After refusing to falsify a store temperature log, her supervisor and Store Manager, Jason Pinnock, began continuously humiliating and demeaning Ms. Boucher, often in front of other employees while using profane language.
Ms. Boucher eventually filed a complaint under Wal-Mart’s Prevention of Violence in the Workplace Policy. The employer found that the complaints were unsubstantiated. Unfortunately, following this there was yet another incident in which Mr. Pinnock humiliated Ms. Boucher in front of other employees. This time, he grabbed her by the elbow and told her to prove to him that she could count to ten by counting out loud ten pallets of products that had yet to be unloaded. This caused Ms. Boucher to resign and she brought a constructive dismissal action.
At trial, a jury concluded that Ms. Boucher was constructively dismissed and awarded her damages for pay in lieu of notice equivalent to 20 weeks of salary, aggravated damages of $200,000.00 and punitive damages of $1,000,000.00 against Wal-Mart. The jury also awarded her damages for mental distress of $100,000.00 and punitive damages of $150,000.00 against Mr. Pinnock.
Both Wal-Mart and Mr. Pinnock appealed. While the ONCA reduced the amount of damages, Ms. Boucher was still awarded a total of $410,000 in aggravated damages, punitive damages, and damages for intentional infliction of mental suffering upon finding that she had been repeatedly bullied and harassed.
While this is an extreme case, it highlights the potential consequences for employers to ensure they take every harassment complaint seriously.
What should you do if you’re facing harassment at work?
When it comes to harassment in the workplace, speaking with an experienced employment lawyer can help you understand your rights and legal options. Whitten & Lublin can help. Contact us online or by phone at (416) 640-2667.
Author – Sophie Teversham
