Earlier this year, in the case of Incognito v. Skyservice Business Aviation Inc., the Ontario Superior Court of Justice rendered an important decision regarding claims of sexual harassment in the workplace. In particular, the decision affirms that not only is there no independent tort of sexual harassment in Ontario, but also that companies cannot be held vicariously liable for acts of sexual harassment committed by their employees, agents or officers in breach of Ontario’s Human Rights Code (the “Code”).
In this case, the plaintiff was an employee of Skyservice, a Canadian company providing flight operations and flight coordination services. She alleged that, during the course of her employment, she had been subjected to a number of instances of sexual intimidation which she argued messaged to Skyservice’s employees the encouragement, including outside the scope of employment, of unwanted sexually charged activity and created an atmosphere ripe for sexual harassment.
In late 2020, the plaintiff decided to pursue a civil action against both Skyservice and its Vice-President of Sales (the “VP Sales”) in which she claimed that the VP Sales should be found liable for sexual assault and sexual harassment, and that Skyservice should be found vicariously liable for same. In respect of her claim of vicarious liability for sexual harassment specifically, she alleged that:
- Skyservice knew and failed to provide her with a work environment free from gender-based discrimination and sexual harassment and failed to ensure that her complaints were properly investigated and resolved,
- Skyservice discouraged and ignored complaints she made about the sexual harassment she had been subjected to, and this was known to employees and formed part of the workplace culture, and
- Skyservice did not have a workplace policy that condemned or prohibited any sexually tortious behaviours or discouraged same.
In the course of the litigation, Skyservice brought a motion to strike out all of the allegations against it with respect to vicarious liability for sexual harassment on the basis that they did not disclose a reasonable cause of action. Of note, the VP Sales did not bring a motion to strike any of the allegations against him personally, nor did Skyservice seek to strike the allegations against it with respect to vicarious liability for sexual assault.
Positions of the Parties
In support of its motion to strike, Skyservice argued that the tort of vicarious liability for sexual harassment is not a recognized tort in Ontario. It further argued that the Court’s jurisdiction to deal with damages arising from sexual harassment in this case was ousted by the provision in the Code that prohibits civil actions based solely on an infringement of a right under the Code, such as the right to be free from sexual harassment in the workplace (s. 7). In other words, Skyservice took the position that the plaintiff’s claim of vicarious liability for sexual harassment disclosed no independent civil cause of action and that, accordingly, it should be struck.
While acknowledging that a violation of the Code cannot, in and of itself, be a cause of action in civil proceedings, the plaintiff nonetheless argued that the Code does permit claims for sexual harassment for additional damages in civil court as long as another cause of action grounds the claim. In her view, sexual harassment should therefore increase the amount of damages for the tort of sexual assault in the context of her claim. She also argued that in light of the recent “Me Too” movement, there were now compelling policy reasons to recognize vicarious liability for sexual harassment as a tort in Ontario.
After carefully reviewing the legal principles applicable to motions to strike, the relevant provisions of the Code, and existing jurisprudence, the motion judge concluded that sexual harassment was indeed not recognized as an independent tort in Ontario. She further concluded that there was no reason to find otherwise in the present case, re-affirming the current state of the law.
Furthermore, the motion judge noted that the provision in the Code permitting a plaintiff to seek additional damages in court with respect to a breach of the Code as long as another cause of action grounds the claim was of no help to the plaintiff’s case against Skyservice. This was due to a different provision in the Code which expressly states that a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to sexual harassment.
Ultimately, the motion judge granted Skyservice’s motion to strike. Additionally, given that she found that no independent tort of sexual harassment exists in law, she refused to grant the plaintiff leave to amend her pleadings alleging the tort of sexual harassment or vicarious liability for infringements of section 7 of the Code.
Of note, the plaintiff did subsequently bring a motion for leave to appeal the outcome of the motion to strike. However, that motion was dismissed by the Ontario Divisional Court on June 17, 2022.
In Our View
Despite the outcome in the Skyservice matter, employers must nonetheless remain vigilant when it comes to preventing and addressing all forms of harassment, including sexual harassment, in the workplace. We note in particular that:
- If an individual responsible for engaging in harassment in breach of the Code in the workplace is a directing mind of the company – which was not alleged in the Skyservice matter – rather than simply an employee, agent or officer, the company could potentially be held liable in respect of his or her harassment, depending on the circumstances.
- Failing to properly deal with harassment in breach of the Code in the workplace could result in the creation of a poisoned work environment – in and of itself a violation of s. 5 (1) of the Code – thereby opening up the company to potential liability.
Furthermore, employers must note that the decision in the Skyservice matter does not absolve an employer of potential liability in respect of a failure to meet its obligations under Ontario’s Occupational Health and Safety Act, including the obligation to take every precaution reasonable in the circumstances for the protection of workers and the obligation to investigate and address harassment, including sexual harassment.