Highlights of Noteworthy Decisions

Decision 194 16
S. Martel
  • Accident (intentional tort)
  • Employer (acting in personal capacity)
  • Jurisdiction, Tribunal (human rights legislation)
  • Jurisdiction, Tribunal (right to sue)
  • Right to sue (vicarious liability)
  • Right to sue (wrongful dismissal)
  • Words and phrases (action)

The plaintiff in a civil case started working for the employer in May 2012. In July 2012, she was transferred by the employer to another location, at reduced hours. The plaintiff alleged that another worker of the employer made lewd and suggestive comments to her but, when she complained to the employer, management did not take any steps to address the situation. The plaintiff gave notice of resignation, to take effect on January 6, 2013. On her last day of work, she was sexually assaulted by the other worker.

The plaintiff brought an action against her employer and the other worker, claiming damages for wrongful termination and sexual assault. She also sought damages against the employer in respect of post-incident conduct. In addition she brought a complaint to the Ontario Human Rights Tribunal. The employer applied to determine whether the plaintiff's right of action was taken away.
The parties agreed that the part of the plaintiff's action framed in negligence and carelessness against the employer was taken away and that the Tribunal did not have jurisdiction to consider the claim with respect to post-incident conduct. The issues on the application were whether the plaintiff's claims for wrongful dismissal and for vicarious liability of an intentional tort were taken away and whether the plaintiff's complaint to the Human Rights Tribunal was taken away.
The statement of claim regarding wrongful dismissal alleged that the employer's conduct, in unilaterally changing the terms of the plaintiff's employment, amounted to constructive dismissal and that the termination of the worker's employment, which occurred after the worker complained of the conduct of the other worker, was a dismissal by the employer and not a resignation by the worker.
The preponderance of Tribunal decisions have found that an action for wrongful dismissal is not statute-barred. The wrongful dismissal action in this case is not framed as being for or by reason of an accident. Some of the facts related to change in employment terms and not to the conduct of the other worker. The remedy for wrongful dismissal is damages in lieu of notice, which is a remedy not provided by the WSIA. The right to claim for wrongful dismissal was not taken away.
The claim regarding vicarious liability related to liability of the employer for the acts of the other worker. The Vice-Chair noted that it was agreed by the parties that the other worker was a manager but was not an executive officer, director or shareholder of the employer. A review of Tribunal and court decisions indicated that the right of action against an employer in respect of workplace accident is taken away unless the employer's actions were criminal in nature such that the employer removed itself from the scope of the WSIA. Sexual harassment and sexual assault have been accepted in Tribunal jurisprudence as falling within the definition of a workplace accident. However, there was no claim that the actions of the employer or its executive officers, directors or shareholders were criminal in nature, so as to take them out of the scope of the WSIA. Accordingly, the right of action regarding vicarious liability of an intentional tort was taken away.
The right to bring the application under the Human Rights Code was not taken away. Under s. 31, the Tribunal only has jurisdiction to consider an application brought by a party to an action. The term "action" has been repeatedly defined as a court proceeding. In addition, the Vice-Chair noted that some of the remedies available under the Human Rights Code are not available under the WSIA.
The application was granted in part.