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534Robinson v Royal Canadian Mint ([1997] O.J. 1966]This principle was accepted, although not applied in the employee’s favour in this instance. The trial decision was that of Chadwick J., [1992] O.J. 2270. Back to book Page
535Chadwick J., as above.Back to book Page
536The Ontario Court, General Division in Shah v Xerox (affirmed by the Court of Appeal)Back to book Page
537The Court of Appeal: “the court may find an employee has been constructively dismissed, without identifying a specific fundamental term that has been breached, where the employer’s treatment of the employee makes continued employment intolerable.”Back to book Page
538The 2010 decision of the Ontario Superior Court in Disotell v Kraft Back to book Page
539It is not mandatory in every jurisdiction. It is so in Ontario, Canada, Saskatchewan, NWT and PEI.Back to book Page
540A decision of the Federal Court came to this conclusion in its 1999 decision of Canada(Human Rights Commission)v Canada (Armed Forces), where the employer maintained a harassment policy.Back to book Page
541Lloyd v Imperial Parking, a 1997 decision of the Alberta Queen’s Bench Back to book Page
542The Ontario Court of Appeal in its July 2013 decision in Johnson v General Motors which set aside the trial judge’s decision. The issue here was racial discrimination.Back to book Page
543The Ontario Court of Appeal in Attiboude aire v. Royal Bank of Canada allowed the plaintiff to plead that certain action of the defendant, a federally regulated employer, was contrary to the Canadian Human Rights Act and hence a basis on which the constructive dismissal action may proceed.Back to book Page
544Effective as of September 8, 2016 by the Sexual Violence and Harassment Action Plan Act Back to book Page
545Wilson v Solis Mexican Foods due to a failure to accommodate a physical disability; Bray v Canadian College of Massage and Hydrotherapy for breach of family status and sex; in Partridge v Botony Dental due to the termination following a return from maternity leave.Berkhout v 2138316 Ontario Inc., [2013] O.J. No. 1125 – Small Claims Court in which $15,000 was allowed, as referenced in Bray. (gender)
Silvera v Olympia for racial and gender violations.
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546As in Wilson Back to book Page
547The trial decision was appealed but not on the issue of the quantum of human rights damages, Doyle v Zochem in May of 2016. The Court of Appeal decision was released in February of 2017.Back to book Page
548Wilson and Bray. Back to book Page
549Moreland v. St. Michael’s Hospital, 2012 HRTO 2262 (CanLII),  and Baker v. Sears Canada, 2009 HRTO 1014 (CanLII)Roycroft v Premier Salons (Martin) Back to book Page
552The recent decision of Bhasin v Hrynew has now required good faith conduct throughout the duration of the relationship. It is discussed below. Back to book Page
553The Alberta Queen’s Bench decision of Pawlett v Dominion Protection Service proceeded to trial before the Supreme Court decision in Keays v Honda had been decided. An award was made of 2 months’ severance which was then increased by a further three months due to the unfair conduct, in this case of a sexually harassing nature.
The personal defendant was found to have shown the plaintiff sexually explicit images, tried to hold her hands, put his hand on her thigh, slap her buttocks. He also grabbed her, tried to kiss her, and forced his hand under her sweater.A further order was made for $50,000 in punitive damages and $25,000 for the tort of assault. Vicarious liability was found against the employer. The punitive damage award was reduced on appeal to $5,000. The appeal, however, contested only liability, after which the sole argument was directed to punitive damages, which parenthetically were reduced by $45,000 as the Court of Appeal found that the trial judge had unfairly emphasized the conduct of the wrongdoer in assessing the damages in the battery tort claim.
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554The remedy is traditionally seen from the perspective of the alleged harasser who has been terminated without a proper investigation. It could also be applied to an accuser who has been terminated by the allegations of an invented complaint, again without a proper investigation. Back to book Page
556Although this is not the case in Ontario and Nova Scotia presently.Back to book Page
557Seneca College v Bhadauria, a 1981 decision of the Supreme Court of Canada. This principle was repeated in Keays v Honda. Back to book Page
558Such as Saskatchewan’s maximum recovery of $20,000 compensatory and punitive and Canada’s maximum of $20,000 compensatory and a further $20,000 of “special damages”.Back to book Page
559Timmermans v Buelow (1984) 38 CCLT 136; Rahemtulla v Vanfed Credit Union [1984] 3 WWR 296; Boothman v Canada Back to book Page
560Strong v Kisbee (EstateTrustee), a 2000 decision. The plaintiff was fired for just cause, a defence which succeeded at trial and on appeal. The cause allegations were based on the employee’s allegations that she was raped by the plaintiff who had sued the employee for defamation. She counter-claimed successfully for assault. Back to book Page
561The test is not “ought to have known”. The test is “purely subjective”, not objective as noted by the Ontario Court of Appeal in Prinzo v. Baycrest Centre for Geriatric Care(2002) and Boucher v Wal-Mart Back to book Page
562Ontario Court of Appeal in Prinzo v Baycrest Back to book Page
563Clark v Canada. Comments were made, including, that she was not a real woman until she had a child, told to go home and start a family, called butch and a meter maid. She was on one occasion grabbed and kissed and told to call the offender when her husband was away. Plastic breasts were attached to her work station. A male colleague refused to shut off a pornographic movie when she complained. A Playboy centerfold was displayed in the office, against her objection. She testified she could not count on work support from her male colleagues and the office atmosphere was hostile and caused her emotional harm. No male officers testified to rebut this evidence at trial.Back to book Page
564in K.T.v Denis Vranich,Elixir and Paradise Lane Developments Hamilton Inc.,On the evening of the assault, Vranich pushed the plaintiff up against a wall, pulled her top down and touched her breasts and her vagina. He did so while laughing. K.T. yelled at him to stop. She believed this lasted for five to ten minutes.Back to book Page
565Norberg v Wynrib [1992] 2 SCR 226 at par 26 Back to book Page
566Seneca College v Bhadauria is a 1981 decision of the Supreme Court of Canada which in the past has been used to support the defence that it is not possible to sue in the civil courts for a breach of the Human Rights Code of Ontario.
The plaintiff had asserted a claim against the College on the basis that she had been denied employment due to race. Her claim alleged a new tort on that basis or alternatively the right to sue civilly by asserting the provisions of the Code.
The Ontario Court of Appeal in a decision written by Wilson J.A., as she then was prior to her appointment to the Supreme Court, recognized the tort based on public policy and would have allowed the claim to proceed. The second argument of advancing a civil claim based on the Code’s protections was not addressed in this decision.
The Supreme Court decision was unanimous in reversing the Court of Appeal in reasons delivered by the late Chief Justice Laskin. It also determined that there was no such common law action, that is a tort of discrimination:
The impact of this decision has been eliminated due to the June 2008 amendments to the Code which, as discussed previously, allows a civil action for a breach of the Code where there is a companion action. This applies only to employees working in a provincially regulated business.
In addition, this case has no consequence on the ability of the plaintiff to sue by using the traditional torts and the Victims’ Bill of Rights, when applicable. The access to the traditional torts is unaffected by the governing jurisdiction, whether it be provincial or federal.
The Ontario Superior Court decision in Veri v Mill Creek Motor Freight again raised Bhadauria as a defence to a claim brought by the plaintiff in the civil court, in this instance by suing for sexual harassment as a distinct cause of action.
Prior to commencing the civil action, the plaintiff had filed a complaint with the Canadian Human Rights Commission, which had dismissed the complaint. No review was taken of that decision, after which the civil action was commenced. The employer in this instance was federally regulated.
The Court applied the Bhadauria decision and dismissed the action for sexual harassment on a summary motion. No issue was raised as to issue estoppel or cause of action estoppel. A claim had been made for the tort of battery but it was found to be out of time and dismissed.
While no issue is taken with respect to the above, the decision goes further. The claims pleaded against the defendant were described as sexual harassment and battery.
While it is clear that Bhadauria bars a civil action for a violation of the Canadian Human Rights Act itself, it does not, it is submitted, act as a bar to a traditional tort claim which uses the sexually harassing facts to support a tort claim, as in the case, battery. The decision stated as follows:
[8] I have therefore reached the conclusion that the plaintiff’s claim for damages for mental distress arises out of the alleged sexual harassment or battery on the part of Simpson and accordingly, to the extent that the damages were caused by sexual harassment, on the authority of Bhadauria, such a claim can only be brought before the Human Rights Commission.The reference to the battery tort is clearly wrong. Nothing in Bhadauria bars a plaintiff from access to the traditional torts.
It would appear that the attack made by the moving party on the battery claim was solely due to it being out of time.
The Court of Appeal also dealt with this case. In its endorsement, the Court of Appeal stated as follows:
[1] We called on the respondent on one issue: whether the claim for intentional infliction of mental or emotional harm raises a genuine issue for trial. In our view, it does not.
[2] Evidence of harm or illness is an essential element of this tort. In the eight years that this matter has been outstanding, the appellant has produced no evidence of harm, and in oral argument, acknowledged that she has not done so.The appeal endorsement is not instructive of what issues were raised before it on appeal
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567Nova Scotia Court of Appeal, B.M.G. v Nova Scotia Back to book Page
568Cor field v Shaw; Y. (S.) v. C. (F.G.), 1996 CanLII  6597 (BCCA), [1997] 1 W.W.R. 229, 26 B.C.L.R. (3d) 155 (C.A.).Back to book Page
569The Supreme Court of British Columbia in Corfield v Shaw,Baker and Baker Industries, a 2011 decision of Mr. Justice Buller, agreed with the basic assertion in law that the employer owed to the plaintiff employee a duty of care, although did not apply the duty in this instance. Fleming v Ricoh although the issue was raised obliquely. Back to book Page
570Bannister v. General Motors of Canada Ltd. 1998 CanLII 7151 (ONCA), (1998) 40 O.R. (3d) 577 (O.C.A.). Gonsalves v. Catholic Church Extension Society of Canada 1998 CanLII 7152 (ONCA), (1998) 164 D.L.R. (4th) 339(Ont. C.A.)Back to book Page
571Cooper v Hobart 2001 SCC 79, [2001] 3 SCR 537 Back to book Page
573Piresferreira v Ayotte OCA; leave to appeal refused [2010] SCCA 283. This decision denied the claim against the employer and the supervisor in his personal capacity. Back to book Page
575The same policy reason prevented a plaintiff from suing his employer for a negligent investigation in Correia v Canac Kitchens OCA. Much to the same effect is the decision of the Nova Scotia Supreme Court in Sanford v Carleton Industries Back to book Page
576Amaral v Canadian Musical Reproduction Rights; The Court of Appeal offered no right or wrong review of the trial decision on this issue, which it issued in May of 2009. It regrettably chose to avoid the issue. It is odd that neither decision referenced Sulz which was initially decided in January of 2006, although it was before the court as it was cited on the issue of intentional infliction of emotional suffering.Back to book Page
577The motions decision in Mujagic v State Farm did, however, acknowledge Sulz and allowed the claim to proceed on a dismissal motion. This decision was reviewed by the Divisional Court on a leave application, which determined that “there was no such tort”, referring to Amaral as authority. Back to book Page
578Vanek et al. v The Great Atlantic & Pacific Co. of Canada Ltd. et al., [1999] O.J. No. 4599 (C.A.) 2006 BCSC 99] Back to book Page
579Sulz v Attorney-General, upheld by the Court of Appeal. (this issue was not argued on appeal) Back to book Page
580As was stated in Wallace v United Grain Growers Ltd, 1997 CanLII 332 (SCC), [1997] 3 SCR 701, 152 DLR (4th) 1 Back to book Page
581Much to the same effect is the decision of the Alberta Queen’s Bench in Styles v Alberta Investment Management and generally in Karmel v Calgary Jewish Academy. The application of Bhasin v Hrynew to the entirety of the employment relationship is now clearly beyond dispute.Back to book Page
582Choc v Hudbay Minerals, the issue arose on a motion to dismiss as showing no reasonable cause of action in negligence and hence the reasons allow only that the action may proceed to trial. Back to book Page
583As in Ontario, Canada, PEI, NWT and Saskatchewan Back to book Page
584Hudson v Youth Continuum,Phillip Brind leand The Brindle Agency Inc. and K.T.v Denis Vranich,Elixir and Paradise Lane Developments Hamilton Inc. The claim was not defended. The same claim based on verbally abusive conduct, not sexual harassment, was allowed in Shulz v Attorney-Generaland upheld on appeal, although there was no issue of this liability raised on appeal. Back to book Page
585K.T.v Denis Vranich,Elixir and Paradise Lane Developments Hamilton Inc. The case was not defended. The claim in negligence against the personal defendant was upheld for which the employer was then found vicariously liable. It would be an exaggeration to conclude that this decision represents current Ontario law, given the issue of workplace negligence, albeit against the employer, as referenced above Back to book Page
587As discussed on the topic of vicarious liability, this obligation is not one to which the employer may be attached vicariously.Back to book Page
588In essence, the theory is akin to a negligence claim, in requiring a party who has affirmative knowledge of a wrongdoing to take steps to remedy the circumstance. The court referred to the BC Court of Appeal decision in M. (M.) v F. (R.) 1997 CanLII 14477 (BCCA), (1997), 52 B.C.L.R. (3d) 127 (C.A.), Back to book Page
589inBlackwater v. Plint, 2005 SCC 58 (CanLII), [2005] 3 S.C.R. 3, at para. 89,This case was not based on an employment relationship. Back to book Page
590It is common sense but an authority yet speaks to this. A.M.S. v Wootton NS SC Back to book Page
591Cor field v Shaw; Y. (S.) v. C. (F.G.), 1996 CanLII 6597 (BCCA), [1997] 1 W.W.R. 229, 26 B.C.L.R. (3d) 155 (C.A.).Back to book Page
592C.C.B. v. I.B., 2009BCSC1425(CanLII), 2009 BCSC 1425, at para. 56. Back to book Page
593Hudson v Youth Continuum,Phillip Brindle and The Brindle Agency Inc. This was inclusive of $50,000 for aggravated damages. The claim was not defended. Back to book Page
594Ms. Hudson had told the resident to remain in his room as a means of discipline. He escaped from the room and declared his intention to leave. The plaintiff called her superior for instructions, who advised her to refuse to give the resident his shoes or to permit to leave. The resident became violently angered, assaulted the plaintiff by striking her with a vase, choked her with a cord, sexually assaulted and raped her. Ms. Hudson suffered cuts and bruises, required stitches and had to take anti-HIV medications, which resulted in a weakening of her symptoms and shingles. She suffered from anxiety, became less trusting and was required to seek a new career by returning to school.Back to book Page
595K.T.v Denis Vranich,Elixir and Paradise Lane Developments Hamilton Inc., this was also inclusive of $50,000 for aggravated damages. Back to book Page
596IT may be noted neither Hudson or K.T. cases was defended. Both cases were default assessments. Back to book Page
597This sum was also awarded in City of  Calgary v Canadian Union of Public Employees, Local 38. The case was an amalgam of arbitral, human rights and tort claims as agreed. The only logical basis of supporting this award was based on tort claims. The employee was assaulted on numerous occasions. The employer failed to deal with the complaint and in fact perpetuated the harassment by its failure to act. The employee suffered serious emotional harm. Back to book Page
598M.B.v Deluxe Windows and Mickey Weig was decided by the Ontario Court of Appeal in March of 2012. The damages were in assault and battery. The plaintiff held the position of a commissioned sales representative. From January to October of 2004, she was subjected to four sexual assaults by her direct supervisor and part owner of the corporate defendants, Mickey Weig. The conduct of Mr. Weig resulted in four criminal convictions for sexual assault, one of which was forced sexual intercourse, two convictions for forced confinement, one conviction for uttering a threat to cause death and a further conviction for uttering a threat to cause serious bodily harm. Mr. Weig was sentenced to 30 months in jail for these convictions. He remained in jail as of the date of the civil trial. Back to book Page
599In Strong v Kisbee (Estate Trustee), a decision in 2000, the plaintiff was fired for just cause, a defence which succeeded at trial and on appeal. The plaintiff, the alleged rapist, sued the initial complainant, identified as “MPP” for defamation. She counterclaimed for assault and was awarded $100,000 as general damages. The Court of Appeal decision was made in August of 2000. Back to book Page