Harassment — Ontario Employment Law
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About Harassment
Harassment in an Ontario workplace is more than just rude behaviour; it's a pattern of conduct that can create a toxic and unsafe environment, with serious legal consequences for employers. Ontario law addresses harassment through two primary lenses: the Ontario Human Rights Code (OHRC) and the Occupational Health and Safety Act (OHSA).
Under the OHRC, harassment is defined as a “course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome” based on a protected ground. These grounds include race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex (including sexual harassment), sexual orientation, gender identity, gender expression, age, marital status, family status, or disability. For example, persistent jokes about an employee's age or repeated unwanted comments about their ethnic background would fall under this definition.
Separately, the OHSA defines 'workplace harassment' more broadly, covering vexatious comments or conduct that are unwelcome, without needing a link to a protected human rights ground. This is often referred to as workplace bullying. The OHSA places a positive duty on employers to protect workers from harassment. This includes preparing a written workplace harassment policy, developing a program to implement it, and ensuring all complaints are appropriately investigated. An employer's failure to investigate a harassment complaint is a breach of the OHSA.
In severe cases, where an employer fails to address serious harassment, the work environment may become so intolerable that an employee feels they have no choice but to resign. This can lead to a claim for 'constructive dismissal,' where the resignation is treated as a termination by the employer. Because the facts of each situation are so critical in determining if conduct meets the legal threshold for harassment, understanding your specific rights often requires a detailed analysis of your circumstances.
Frequently Asked Questions
What is the difference between harassment under the OHSA and the Human Rights Code?
Harassment under the Human Rights Code must be related to a protected ground like race, sex, or disability. Harassment under the Occupational Health and Safety Act (OHSA) is broader and includes general workplace bullying that is not tied to a protected ground. Both involve unwelcome vexatious conduct.
What should I do if my manager is the one harassing me?
Your employer's harassment policy should outline a process for reporting to someone other than your direct supervisor, such as Human Resources or a more senior manager. If no such process exists or is effective, you may need to seek external legal guidance.
Is a single incident enough to be considered harassment?
Generally, harassment involves a 'course of conduct,' meaning a series of incidents. However, a single, serious incident can sometimes be severe enough to constitute harassment, especially if it has a lasting, poisoning effect on the work environment.
What are the time limits for filing a harassment claim in Ontario?
For a claim at the Human Rights Tribunal of Ontario, you generally have one year from the last incident of harassment. For a civil lawsuit for constructive dismissal based on harassment, you typically have two years to file a claim under the Limitations Act.
My employer investigated my complaint but said it was 'unfounded.' What now?
If you believe the investigation was biased, incomplete, or the conclusion was wrong, you still have options. You can file an application with the Human Rights Tribunal or explore a civil claim, depending on the nature of the harassment and its impact on your employment.
Does my employer have to keep my harassment complaint confidential?
Your employer must protect your confidentiality as much as possible during an investigation, but absolute confidentiality is not always feasible. Information will likely need to be shared with the alleged harasser and witnesses to ensure a fair process.
When does difficult management cross the line into illegal harassment?
A manager providing critical feedback or managing performance is not harassment. It crosses the line when the conduct is vexatious, serves no legitimate work purpose, and is known or should be known to be unwelcome, especially if it's repetitive and targets an individual.
When should I talk to an employment lawyer about workplace harassment?
You should consider consulting a lawyer if the harassment is severe, your employer has failed to act on your internal complaint, you are facing retaliation for reporting, or if the situation has become so toxic you are considering resigning.
Common Scenarios
- A supervisor constantly belittles an employee in team meetings, calling their ideas 'stupid' and mocking their accent.
- After an employee discloses a mental health disability, their colleagues begin excluding them from social events and spreading rumours about their competence.
- An employee is subjected to a campaign of intimidation by a co-worker, including aggressive emails, verbal threats, and sabotaging their work.
- A manager makes repeated, unwelcome comments about a junior employee's appearance and personal life, making them feel uncomfortable at work.
- Following a formal complaint to HR, the employee who was harassed finds themselves being disciplined for minor issues and passed over for opportunities.
What You Should Know
- Keep a detailed, private log of every incident of harassment. Note the date, time, location, what was said or done, and who witnessed it.
- Review your company's workplace harassment policy. Under the OHSA, your employer must have one and you should follow its reporting procedure.
- Put your complaint in writing to HR or management. This creates a formal record and triggers the employer's legal duty under the OHSA to investigate.
- Do not resign in response to harassment without first getting legal advice. Quitting may impact your ability to claim constructive dismissal and receive damages.
- If your employer's internal process fails to resolve the issue, consult an employment lawyer to understand your external options, such as a Human Rights Tribunal application or a civil lawsuit.
Featured Cases
Stride v. Syra Group et al.
2024 ONSC 2169 (CanLII) · 2024-04-24Discrimination Case: Harassment Based on Disability
A discrimination case involving harassment based on disability, where the court will determine vicarious liability for the employer. The procedural posture is not specified in the keywords.
Osmani v. Universal Structural Restorations Ltd.
2022 ONSC 6979 (CanLII) · 2022-12-09Constructive Dismissal and Workplace Harassment: Damages Awarded
A constructive dismissal case where an employee resigned due to an abusive workplace environment, including harassment and unsafe conditions. The court found the employer failed to address these issues, leading to damages for wrongful dismissal, including aggravated and punitive damages. The case also involved battery and assault claims, human rights violations, and unpaid wages. The human trafficking claim was dismissed.
Bayes v. RBC
2021 ONSC 6836 (CanLII) · 2021-10-14Employment Termination: Release Agreement and Duty of Good Faith
A case involving the termination of employment where the plaintiff was terminated without cause and signed a release agreement. The court granted summary judgment in favor of the defendants, finding the release agreement enforceable and that the employer fulfilled its duty of good faith during the termination process.
Allan Etherington v. National Hockey League
2020 ONSC 8192 (CanLII) · 2020-12-14Wrongful Dismissal and Motion to Strike in Employment Case
A motion to strike an unduly complex Statement of Claim was successful, and the court considered whether substantial indemnity costs were appropriate. The case also involved a wrongful dismissal claim, where the plaintiff alleged harassment, discrimination, and mental suffering, which were struck, and the plaintiff sought delayed payment of costs due to financial hardship.
Mohammed v. Her Majesty the Queen in Right of Ontario
2019 ONSC 532 (CanLII) · 2019-02-07Workplace Discrimination and Constructive Dismissal Case
A case involving claims of constructive dismissal, wrongful dismissal, and discrimination due to harassment and reprisals in the workplace. The court ruled on the sufficiency of the pleadings and granted leave to amend the statement of claim. Partial indemnity costs were awarded to the defendants.
McDonald v. Regional Municipality of Peel
2017 ONSC 3378 (CanLII) · 2017-06-14Workplace Harassment Case: Plaintiff's Claims Dismissed
A case involving allegations of workplace harassment and adverse treatment by management. The court found no evidence of harassment or wrongful conduct by the employer and dismissed the plaintiff's claims for damages due to lack of credible evidence.
Lemesani v Lowerys Inc.
2017 ONSC 1808 (CanLII) · 2017-03-20Constructive Dismissal: Workplace Harassment and Health Benefits Termination
A constructive dismissal case where the plaintiff alleged workplace harassment and termination of health benefits. The court dismissed the claim, finding no substantial alteration of employment contract or poisoned workplace. The case also involved issues of disability accommodation, contract frustration, and damages, with the court awarding 10 months' notice and dismissing punitive and aggravated damages claims.
Watson v TrojanOne Ltd.
2016 ONSC 2740 (CanLII) · 2016-04-25Constructive Dismissal and Corporate Officer Liability: Harassment Case
A constructive dismissal case involving allegations of harassment and a poisoned work environment. The court ruled that corporate officers could be held personally liable for independent misconduct, and that the plaintiff's claims against individual defendants were not struck for insufficient particulars. The case also addressed the applicability of simplified procedure for the claim.
Diamantopoulos v. KPMG LLP
2014 ONSC 1038 (CanLII) · 2014-06-02Senior Staff Accountant's Termination: 10 Months' Notice Awarded
A senior staff accountant was terminated after 10 years of service and was awarded 10 months' notice or salary in lieu thereof. The court also addressed the employer's response to harassment allegations and found no breach of contract or intentional infliction of mental distress.
Disotell v. Kraft Canada Inc.
2010 ONSC 3793 (CanLII) · 2010-06-21Constructive Dismissal Case: Workplace Harassment and Notice Period
A constructive dismissal case where the plaintiff alleged workplace harassment and the employer's failure to address it. The court found that the employer's inaction created intolerable working conditions, leading to a 12-month notice period being awarded. The case also addressed the employer's duty to provide a harassment-free workplace and the offsetting of disability payments against notice damages.
Tran v. Lemerz Canada Inc.
2005 CanLII 21106 (ON SC) · 2005-06-09Workplace Discrimination Case: Harassment Based on Race and Origin
A workplace discrimination case involving harassment based on race, colour, and place of origin. The case also addresses the definition of employer and grievance procedures in employment law.
Heald v. Toronto District School Board
2004 CanLII 27405 (ON SC) · 2004-02-24Employment Claims Against Toronto District School Board: Defamation, Harassment, and Negligence
A case involving multiple tort and employment law claims against the Toronto District School Board, including allegations of defamation, harassment, misfeasance in public office, and negligence. The court addressed issues of jurisdiction, limitation periods, and whether the defendants' actions constituted legal liability. The claims were largely dismissed due to lack of evidence or statute-barred.
Ross v. IBM Canada Inc.
2004 CanLII 27413 (ON SC) · 2004-02-02Constructive Dismissal Case Involving Workplace Harassment and Employer Duty of Care
A constructive dismissal case where the plaintiff alleged that the employer failed to address harassment by a co-worker, leading to a claim that the employer breached its duty of care. The case also involves questions about the application of the Wallace factor, negligent misrepresentation, and whether the employer is vicariously liable for the harassment. The plaintiff also sought to proceed with a civil action while a parallel human rights complaint was pending.