It is well established that employers who fail to meet the workplace violence and harassment requirements of the Occupational Health and Safety Act (the “OHSA”) can face significant penalties. However, the Ontario Superior Court of Justice’s recent decision in Merrifield v The Attorney General, 2017 ONSC 1333 (“Merrifield”) suggests that an employer could face additional liability for monetary damages at common law for incidents of workplace harassment, violence and/or bullying.
In Merrifield, Justice Vallée of the Superior Court evaluated the RCMP’s response to an extensive list of harassment and bullying concerns raised by its employee, Sgt. Peter Merrifield. Sgt. Merrifield’s concerns involved his co-workers and, in some cases, his superiors. When Sgt. Merrifield escalated his concerns to senior management, the RCMP consistently failed to address his concerns in a reasonable or timely manner. Instead, Sgt. Merrifield’s superiors allowed innuendo and rumors about Sgt. Merrifield to spread throughout the organization. This was found to have perpetuated the harassment and bullying directed toward Sgt. Merrifield, as opposed to preventing it from continuing.
Justice Vallée recognized Sgt. Merrifield’s right to sue his employer for neglecting to put a stop to the harassment and bullying. She relied upon the following legal test to determine whether an employee is entitled to damages because of his/her employer’s action or inaction with respect to workplace violence, harassment or bullying:
- Was the conduct of the defendant (employer) toward the plaintiff (employee) outrageous?
- Did the defendant intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional stress?
- Did the plaintiff suffer from severe or extreme emotional distress?
- Was the outrageous conduct of the defendant the actual and proximate cause of the emotional distress?
Considering Sgt. Merrifield’s specific circumstances and the extensive evidence in his favour, Justice Vallée answered each of the above four questions in the affirmative. She awarded $141,000 in damages to Sgt. Merrifield.
Employers should be mindful of the following issues raised by the Superior Court’s precedent-setting decision in Merrifield:
- Pursuant to Bill 132, an employer is mandatorily required to conduct a workplace investigation (internal or external) into any allegation of harassment, regardless of whether the complaint relates to bullying, violence or sexual harassment.
Bill 132 does not list circumstances where an employer is required to engage an external workplace investigator. Bill 132 only states that the investigation must be “appropriate in the circumstances”. It should also be kept in mind that the MOL Inspector can order the employer to engage an external investigator.
The MOL, and (pursuant to Merrifield) the common law Courts, may later evaluate the appropriateness of the investigation into a complaint of workplace harassment. Engaging a qualified external workplace investigator in a particularly sensitive case may decrease an employer’s overall liability over the long term, particularly where the workplace investigation is subject to later review by the MOL and/or a Court.
- Failure to appropriately investigate an incident of workplace violence or harassment could give rise to significant fines under the OHSA, and, pursuant to Merrifield, could also support a common law civil action for workplace harassment, bullying, violence and/or sexual harassment. In Merrifield, the RCMP’s failure to investigate Sgt. Merrifield’s numerous complaints resulted in a significant monetary damages award against the RCMP.
- Pursuant to Bill 132, an employer is mandatorily required to notify the complainant and respondent of the outcome of a workplace investigation. If a workplace investigation confirms that workplace violence, bullying, harassment or sexual harassment has occurred, Merrifield suggests that the investigation report could later be used as evidence by the complainant in a civil law suit against the employer.
- In circumstances involving a unionized employee, the employee would be required to seek a remedy through the conflict resolution processes detailed in the applicable collective agreement (typically through arbitration).
The RCMP has appealed the Superior Court’s decision in Merrifield to the Ontario Court of Appeal. Until the Court of Appeal renders its decision on this matter, it is unclear whether Justice Vallée’s decision will be binding on other Courts in the province. If Merrifield is upheld, employers could face significant exposure under the enforcement provisions of the OHSA and the common law in cases of workplace violence, harassment, bullying and/or sexual harassment. We will continue to monitor and provide updated coverage on Merrifield as it moves through the appeal process.
Tushar Anandasagar is an associate lawyer at LeClair and Associates P.C. He specializes in Labour and Employment law, with a focus on Workplace Policy Development and Regulatory Compliance. For further information, please contact Tushar by email at firstname.lastname@example.org.
Written by Tushar Anandasagar | LeClair and Associates