There have been important developments recently regarding claims arising from alleged workplace harassment, bullying and toxic work environment, as prohibited by Ontario’s Human Rights Code and the law generally.
In a recent decision by Ontario’s Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”), the employee commenced a lawsuit against her former employer and claimed damages for constructive dismissal as a result of alleged bullying, harassment and a poisoned work environment. The Tribunal found that the employee’s claims flowed directly from her allegations of harassment and bullying in the workplace, which she said caused her to suffer chronic mental distress. The Tribunal found that, under Ontario’s Workplace Safety and Insurance Act, 1997 (the “WSIA”), the employee’s lawsuit was statute barred entirely. The employee’s allegations were “inextricably linked” to her alleged workplace injuries. In this particular case, the employee’s right to pursue a civil case against her former employer was barred.
The case, which deals directly with constructive dismissal claims (rather than outright wrongful termination) is not yet subject to judicial review but may be.
However, employers must now consider whether cases alleging workplace harassment and bullying are more appropriate under the WSIA regime. In the event an employer determines that a case more appropriately belongs under the WSIA regime.
If an employee makes a claim for, effectively, mental stress due to such alleged conduct in the workplace, the employee may be prohibited from bringing a civil claim for damages and, if so, the employee may face a “right to sue” application by the employer.
Morningstar v. Hospitality, 2019 ONWSIAT 2324