Can Employees Sue for Workplace Harassment?

Written By Joan Dunlop

Can Employees Sue for Workplace Harassment?

Responsible employers understand their duty to maintain a safe work environment under the Alberta Occupational Health and Safety Act or similar laws in other jurisdictions, since failure to comply can result in liability. However, changes to employment law in Canada are continuous, and employers need to be aware of the impacts.

Canada’s Ever-Evolving Employment Law Landscape

Currently in Canada, employers have limited responsibility for harassing conduct between employees. According to international business law firm Torys LLP, “employees cannot rely on an employer’s negligence to ground a common law claim for mental suffering. They must prove their employer intended to cause the kind of harm that occurred or knew that it was almost certain to occur.”

However, a 2017 managerial bullying and harassment case, Merrifield v. Canada, sparked significant debate in the employment law realm when it recognized a freestanding tort of harassment.

What You Need to Know

Merrifield brought a civil claim against the RCMP, seeking damages for harassment and intentional infliction of mental suffering. The trial judge ruled in favour of Merrifield, awarding him $141,000 in general and special damages. Later, the Ontario Court of Appeal overturned the lower court’s decision, concluding that there is no independent common law tort of harassment…yet.

Merrifield v. Canada represents the first case in which the Canadian appeals court has considered whether a common law tort of harassment exists, and it shines a light on the gray areas and voids surrounding current laws. We predict Canadian courts will recognize a harassment tort in the future, and employers may be held liable for allowing harassing conduct between employees.

Shielding Your Business from Employee-Related Litigation

As the law develops and obligations expand, employers need to be prepared to defend against ground-breaking suits and, more importantly, prevent them from happening in the first place.

To protect your organization and employees, consider the following action steps:

  • Ensure supervisors and managers are well educated on obligations to prevent harassment in the workplace under employment law

  • Develop and enforce policies and procedures to prevent harassment

  • Provide ongoing respectful workplace training to all new and existing staff

  • Create a comprehensive employee handbook that includes information on how to how to identify and report harassment, how to document and report threats, and the steps your organization will take to investigate complaints

  • Diligently and adequately investigate all complaints and reports of harassment, either through an external third party or an experienced, impartial, internal staff member

Please note: the information in this article is not a substitution for legal advice. Please contact your legal counsel as required for updates in this area, and for advice if you think you may be facing legal action of any kind.

Canada’s employment laws and obligations are ever-evolving. Fortunately, Cenera’s experienced Workplace Investigators and HR Advisors are here to help. For more information on respectful workplace training, workplace violence and harassment policies and programs, or guidance on how to respond to workplace harassment complaints, contact us.

Book your consultation today!  

P: 403.290.0466
E: info@cenera.ca

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Joan Dunlop

With a powerful combination of privacy and information management expertise, Joan is an engaging speaker, dynamic motivator, and trusted advisor. Known for her infectious enthusiasm, Joan makes access and privacy legislation accessible, understandable and engaging. She is skilled at clarifying obligations, balancing protection of personal information with the need for transparency and access. A Partner with Cenera, Joan leads teams in Privacy and Information Management, a path inspired by her work administering the Alberta Freedom of Information and Protection of Privacy (FOIP) Act for a large public body. She provides advisory services, conducts Gaps and Privacy Impact Assessments, leads training and is a self-proclaimed policy geek. Joan’s background and experience also positioned her well to lead Cenera’s Workplace Investigations (WI) Practice. She created Cenera’s WI process, trains and supervises the Investigation Team, and leads workplace investigations for public and private sector organizations of all sizes. Joan holds a BA in Political Science from the University of Regina, a law degree from the University of Saskatchewan, and is a certified Master of the Canadian Institute of Access and Privacy Professionals. She is passionate about community work, frequently volunteering with Canadian Blood Services, The United Way of Calgary, Rotary International (Calgary South) and the Canadian Diabetes Association (Calgary Chapter).


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