Ontario, Canada Court Confirms Sexual Harassment Not An Independent Tort

• Published date: 31 October 2022
• Law Firm: Littler - Canada
• Author: Ms Rhonda B. Levy, George Vassos and Douglas Sanderson

• Employee filed action against company vice president for sexual harassment and sexual assault, and against company for vicarious liability for the sexual harassment.
• Court confirmed that sexual harassment is not an independent tort in Ontario and an employer cannot be held vicariously liable for sexual harassment.
• A plaintiff may not seek a civil remedy in court for a breach of the Ontario Human Rights Code, unless it is sought in connection with another independent civil action.
• If, however, an employee makes a claim relating only to a breach of the Code, that claim must be made before Ontario's Human Rights Tribunal.

In Incognito v. Skyservice Business Aviation Inc., 2022 ONSC 1795, an employee made a claim for damages against her employer's Vice-President of Sales (VP) for sexual assault and sexual harassment, and against the employer for vicarious liability for sexual harassment. She asserted that the employer did not provide her with a safe work environment or have an appropriate code of conduct, and ignored her complaints about the VP's behaviour.

The employer made a motion to strike the allegations against it in the Statement of Claim with respect to vicarious liability for sexual harassment, primarily on the basis that in Ontario the tort of vicarious liability for sexual harassment is not a recognized tort that can support a cause of action. The court agreed and granted the motion.

Employer's Position

The employer argued:

• The tort of vicarious liability for sexual harassment is not a recognized tort in Ontario;

• The court's jurisdiction to deal with damages arising from sexual harassment is ousted by Ontario's Human Rights Code (Code); and

• It could not be vicariously liable for the VP's sexual harassment of the employee because s. 46.3 of the Code expressly excludes vicarious liability for sexual harassment by an officer or employee of a corporation and prevents findings of vicarious liability against an employer in respect of a claim of sexual harassment.

Employee's Position

The employee argued:

• Although a violation of the Code cannot, in and of itself, be a cause of action, s. 46.1 of the Code permits a claim for sexual harassment for additional damages in a civil court if another cause of action grounds the civil claim.

• A claim for sexual harassment would increase the amount of damages sought for the tort of sexual assault.

• In Merrifield v. Canada (Attorney General), 2019 ONCA 205 (discussed here), the Ontario Court of Appeal (OCA)...