Employer Liability for Sexual Harassment Under Ontario Code
The Human Rights Administrative Process
Ontario’s Human Rights Code1 contains a deeming provision holding an employer responsible for the conduct of its officer, official, employee or agent in the course of their employment.
This provision, however, does not apply to freedom from harassment in the workplace2, sexual harassment in the workplace3 and sexual solicitation and freedom from reprisal connected to sexual solicitation.
Thus, under the Ontario Code, the complaint must be brought personally against the individual who is accused of the offensive conduct4.
This does not, however, end the analysis of employer liability, again to a complaint of pure sexual harassment under the administrative process.
This concept of “organic liability” provides an argument that the employer company is responsible for the conduct of its principals. It is different from vicarious liability. The theory is that a legal entity can only act through its principals and hence the company will held liable for such conduct of its “principals” or “its directing mind” in a sexual harassment case, or a similar situation where the statute’s deeming provision of liability upon the employer does not apply.
The above review, however, does not end the analysis of employer liability.
Poisoned Work Environment
The remains a further means of establishing employer liability for a sexual harassment allegation due to the existence of a “poisoned work environment”5. In essence, a company which has failed to deal with Code violations prevalent in the workplace will take on this liability due to its failure to assure a proper and safe workplace.
The word “reprisal” can lead to confusion as there are two types of such retaliatory conduct often described as “reprisal”. The first is such actions taken by the employer in response to the filing or threatened filing of any human rights complaint. To make the analysis clear, this is referenced as “General Reprisal”.6
The second is conduct of the employer or an individual against a person who has not acceded to demands for sexual favours. This conduct is generally defined as a form of sexual harassment which for this purpose, it will be referenced as “Sexual Reprisal”.
Conduct which is retaliatory to the threat of or the commencement of a human rights complaint is actionable as General Reprisal. The employer has direct liability for such a complaint.
A complainant for a General Reprisal remedy stands alone7. Success in the substantive complaint is not required. The applicant must only show that rights were claimed or threatened to be claimed under the Code and she was the subject of adverse treatment or the threat of as a result8.
The applicant in such a case simply must show that rights under the code were claimed and she was then the subject of threats of, or actual adverse consequences.
Unlike a complaint of adverse discriminatory conduct which does not require proof of intent9, a claim of General Reprisal requires proof that the action or threat was indeed intended as a retaliation to the claim to or enforcement of a right under the Code.
Such intent may be inferred from circumstantial evidence10, but there must be evidence to support the proposition that the decision maker was aware of the steps being taken to enforce Code rights11.
The intent to reprise may be inferred from the facts12 and is a matter of credibility13. To constitute reprisal, it is sufficient if the conduct is “at least in part” due to the complaint or threatened complaint14.
To succeed on such a General Reprisal claim, the substantive claim which has been threatened or actually brought, need not succeed15. The applicant cannot threaten or bring a claim which she knows lacks merit. He must, however, have a genuine belief in its merits16.
A General Reprisal claim may also lead to a lost income award17, again independently of the merits of the substantive complaint.
1S. 46.3 (1) Ontario Human Rights Code
2S. 5(2) OHRC
3S. 7 OHRC
4The Ontario Human Rights Tribunal publishes a guide for the filing of human rights complaints, which quite rightly discourages employees from naming personal respondents. This should be ignored in sexual harassment cases.
5This arises from S. 5(1) of the Ontario Code.
6The distinction is important, particularly in Ontario. The general reprisal violation attracts deemed employer liability whereas the specific sexual solicitation provision does not.
7That is, a reprisal for the use or threatened use of the Code remedy as opposed to conduct retaliatory to the sexual solicitation.
9It has been held consistently that intent or motive to discriminate is not a necessary element of discrimination. In Ontario (Human Rights Commission) and O’Malley v. Simpson-Sears Ltd
10in MurchievJBMongolianGrill (Hendriks)
11in KowalczykvHudson’sBay (Hart); Jones v. Amway of Canada Ltd.  O.J. No.1504 (Ont. Div. Ct.)
12A good example of this is found in Smith v Menzies in which the finding of general reprisal was influenced by the close proximity between the complaint of offensive conduct and the dismissal the following day and the lack of any credible evidence from the employer to explain this decision.
13see Jones v. Amway of Canada Ltd.  O.J. No.1504 (Ont. Div. Ct.)
14MurchievJB’sMongolianGrill (Hendriks); deSouza v. Gauthier (2002), 43 C.H.R.R. D/128; Elkas v. Blush Stop Inc. (1994), 25 C.H.R.R. D/158 (Ont. Bd. Inq.); and Entrop v. Imperial Oil Ltd. (No.7) (1995), 23 C.H.R.R. D/213, affirmed on other grounds 108 O.A.C. 81 (Ont. Div. Ct.), and reversed on other grounds 2000 CanLII 16800 (ON CA), (2000), 189 D.L.R. (4th) 14.
15Noblev.YorkUniversity (Gottheil)This provides a good review of the tests referenced above. The actual reprisal claim failed in this instance.
16Bertrandv.PrimaryResponse, 2010HRTO186 (CanLII)(Overend).
17MorganvHermanMiller (Debane). The general reprisal claim resulted in a lost income claim of 14 months and the substantive claim was dismissed.