B Remedies – Statutory and Common Law - The Law of Workplace Sexual Harassment in Canada
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B Remedies – Statutory and Common Law

B Remedies – Statutory and Common Law

The Statutory Process

The first remedy is to file a complaint with the relevant human rights body. This relief, of course, is available to any person in Canada.

Civil Law Suit – Ontario Only

In Ontario, presuming that the individual is governed by provincial and not federal law, there is a second manner of seeking a human rights remedy. Ontario amended its legislation 1 on June 30, 2008 to allow civil claims for a breach of a human rights violation when included with another civil claim. Hence a plaintiff suing for wrongful dismissal, or any other remedy, may also add a claim, where appropriate, for damages and other relief for a human rights violation.

Prior to June 30, 2008, civil actions alleging human rights violations were used to support an argument of a claim for breach of good faith and fair dealing as was contemplated in Wallace v United Grain Growers, discussed below.

Aggravated or Punitive damages – All Jurisdictions

In October of 1997, the Supreme Court of Canada decided in Wallace v United Grain Growers that the employer owed a “duty of fair dealing and good faith” to employees at the time of termination.

The Court also stated for the first time, that if there was a breach of that duty, the court should increase the usual notice period. In this case, the company had made cause allegations against the plaintiff, which it dropped on the eve of trial – this was the basis of the breach of the duty of good faith.

After Wallace, many trial and appellate decisions allowed for an increased notice period based on a violation of the human rights statute. 2 These cases are no longer good law as a further Supreme Court decision  released in the summer of 2008, changed the common law remedy dramatically. 3

The Supreme Court then determined that had such a breach of the human rights code been actionable, that a court should not increase the notice period to compensate for emotional harm, but rather should award damages for emotional distress, where proven.

The Court also determined that absent a contrary provision in the enabling legislation, the sole remedy for asserting a breach of the relevant human rights legislation is the administrative complaint process under the pertinent human rights statute.

Accordingly, the earlier cases using a human rights code violation to increase the notice period are no longer good law.

It remains arguable the conduct which may fit the rubric of sexual harassment may be argued as unfair conduct, where termination has resulted from such conduct, and hence be used to support an aggravated damage claim within this definition.

To do so, the claim would require different vocabulary to describe the conduct in question other than sexual harassment, such as a common law tort, as such a claim based solely upon a breach of the Code was no longer actionable.

The Supreme Court of Canada revised Wallace in its 2008 decision in Honda v Keays. Damages for emotional distress resulting from unfair conduct at the time of dismissal will give rise to a compensable claim for aggravated or moral damages.

These issues are reviewed in detail here.

The Traditional Torts

A civil action may also be commenced independently of the relief set out in the relevant statute, using traditional common law tort claims. Such actions have included pleas based on the intentional infliction of mental distress, assault, battery, breach of fiduciary duty, and the negligent infliction of emotional suffering 4 against the employer for failing in its duty to maintain a safe work environment.

Tort claims, it must be recalled, are not closed. The innovation of counsel may well lead to new actions. The torts of intentional infliction of emotional harm and the negligent variation are also reviewed in detail here.

Where there is a criminal conviction, in Ontario, a civil claim may invoke the provisions of the Victims’ Bill of Rights, in the case of a sexual assault or an attempted one. In that event, emotional distress damages are presumed, as is the case in the tort of battery.

Aggravated damages and claims for prospective lost income, when awarded in the tort claims, have tended recently to be higher than the awards expected in the human rights forum. In addition, most human rights tribunals are not empowered to award punitive damages and when empowered to do so, tend to be modest or are capped by the statute.


  1. section 46.1 Ontario Human Rights Code
  2. Such conclusions were reached in Skopitz v Intercorp Excelle, which was based on a disability claim and Galbraith v Acres (affirmed on appeal) which was based on age
  3. Honda v Keays
  4. The negligence claim is controversial. To date it has been foreclosed in Ontario and Nova Scotia and allowed in B.C.

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