In Ontario, employers have duties and obligations in the workplace pursuant to the Human Rights Code (the “Code”), as well as the Occupational Health and Safety Act (“OHSA”). Some of these duties include maintaining a safe work environment and an obligation to investigate incidents of alleged violence or harassment in the workplace. In this regard, Ontario Courts have held employers vicariously liable for the conduct of an employee in the workplace*. Vicarious liability is when an employer undertakes the liability for an employee’s act (thereby paying any subsequent damage awards), even where the employer did not authorize said act.
Facts of the Case
In Osmani v Universal Structural Restoration Ltd., 2022 ONSC 6979, the employee was a labourer with the Company for 14 months. During his employment, the employee was subject to inappropriate, and in some cases violent, conduct by his supervisor.
The supervisor referred to the employee by using ethnic slurs and commented that the employee would be on the “next plane home” if he did not follow instructions. Further, the supervisor referred to the employee as his “bitch” and made inappropriate sexual comments about the employee’s spouse. The supervisor also engaged in acts of violence against the employee, such as punching the employee in the testicles, resulting in the employee’s testicle being surgically removed. Despite the employee reporting this incident, the Company neglected to investigate or address it.
The employee subsequently suffered a workplace injury where he fell off a ladder from a significant height. His supervisor failed to call an ambulance or provide any assistance. The Company further discouraged the employee from filing an injury claim with the Workplace Safety and Insurance Board (“WSIB”) and pressured him to return to work. When the employee returned to work, he described the work environment as intolerable.
The employee claimed that he was constructively dismissed given the conduct he was subjected to, and the Company should be held vicariously liable for the supervisor’s conduct. The employee relied on previous Court decisions which held, “vicarious liability may be imposed where there is a significant connection between the conduct authorized by the employer or controlling agent and the wrong.”** The Court provided a detailed analysis for how employers can be held vicariously liable for the conduct of their employee under the Code.
- Section 46.3(1) of the Code provides for the vicarious liability of corporations for the acts of their officers, employees or agents. While a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to harassment, the failure of management to deal with the harassment, thereby creating a poisoned work environment, is a violation under s. 5(1) of the Code for which the corporation can be held vicariously liable.***
The Court found that the employee was constructively dismissed and the Company had condoned the supervisor’s behaviour by failing to address and investigate these “malicious acts that were specifically geared towards forcing an employee to quit.”**** The Court further found that the Company was responsible for dissuading the employee from filing an injury claim with the WSIB and blaming the employee for the accident. The Court also considered the employee’s vulnerability as his work permit was tied to his continued employment with the Company.
The violence took place in the workplace and, occasionally, in the presence of other employees. Despite this, the Company did not investigate or discipline the supervisor for his conduct. The Court ultimately held that the Company was vicariously liable and awarded the employee $285,000 against the Company and the supervisor.
Although the supervisor’s conduct was especially egregious in this case, employers should be aware that they can be held liable for failing to properly investigate allegations of workplace misconduct. Employers should also take their duties under the OHSA and the Code seriously and ensure that they have workplace policies on harassment and violence. If you require any workplace policies and/or advise on inappropriate workplace conduct and subsequent investigations, the lawyers at Heeney Vokey LLP would be happy to assist.
* Occupational Health and Safety Act, RSO 1990, c.0.1, at s. 32.
** Osmani v Universal Structural Restoration Ltd., 2022 ONSC 6979, at para 17.
*** Human Rights Code, R.S.O. 1990, c. H19, at s. 46.3.
**** Supra note 2, at para 421.