By Barry W. Kwasniewski

Court Rules Employer Cannot be Vicariously Liable for Sexual Harassment

Since the Supreme Court of Canada decision in Bazley v Curry in 1999, Canadian employers may be held vicariously liable when a worker’s sexually violent behavior is closely tied to the undertakings of their employment. This vicarious liability does not however extend to sexual harassment, as the Ontario Superior Court of Justice (“Court”) confirmed on March 22, 2022 in Incognito v Skyservice Business Aviation Inc.

Skyservice Business Aviation Inc. (“Skyservice”) is a company which operates private charter flights along with other airline-related services. Ms. Incognito, (the “Plaintiff”) was a long-time employee of Skyservice, who allegedly endured years of sexual harassment and assault by company employees and management, including Vice-President Peter Bromby. She sued Mr. Bromby for sexual assault and sexual harassment, and Skyservice for vicarious liability for these two torts. Skyservice brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure for an order striking out the Amended Statement of Claim with respect to vicarious liability for sexual harassment on the basis that the allegation disclosed no reasonable cause of action against Skyservice.

Skyservice did not move to strike the claims against it for vicarious liability for sexual assault. Mr. Bromby did not bring a motion to strike the claims against him. Therefore, those allegations remain before the court for future adjudication on the merits.

What the Plaintiff and Skyservice contested was the allegation of vicarious liability for sexual harassment, a claim that Skyservice argued was not a recognized tort in Ontario, based on binding legal precedents established by the Supreme Court of Canada decision of Seneca College v Bhadauria (“Bhadauria”), and Ontario cases which followed, including K.L. v 1163957799 Quebec Inc., Desjardins v The Society of Obstetricians and Gynecologists of Canada, Rivers v Waterloo Regional Police Services Board, and Chapman v 3M Canada Inc. In Bhadauria, the Supreme Court of Canada ruled that violations of Ontario’s Human Rights Code (the “Code”) must be dealt with in the appropriate tribunal and not in civil court. The position of the Plaintiff was that under section 46.1 of the Code, a claim of sexual harassment can be used to seek additional damages in relation to another civil claim. The Plaintiff also relied on Merrifield v Canada (Attorney General), discussed in Charity & NFP Law Bulletin No. 402, where the Court of Appeal left open the possibility of  harassment being recognized as a tort in the future. The Plaintiff contested that a lack of vicarious liability for sexual harassment claims is contrary to current ongoing social dialogues regarding power and gender discrimination in the workplace.

As noted by the Court, subsections 7(2) and (3) of the Code deal with sexual harassment in the workplace. They respectively guarantee that workplaces will be free of sexual harassment and specifically protect against sexual solicitation to confer benefit as a form of harassment. Subsection 46.3(1) of the Code states that any act or omission done by an officer, employee or agent of a corporation will be considered an act or omission of the corporation. However, section 46.3 of the Code explicitly excludes the finding of vicarious liability in the case of sexual harassment, as confirmed in case law. As found by the Divisional Court in Ontario Human Rights Commission v Farris, claims of sexual harassment can only be brought against the individual accused harassers, not the organization itself.

The Court did not agree with the Plaintiff’s assertion that Skyservice could be found vicariously liable for sexual harassment because of the alleged actions of Mr. Bromby. The Court cited Honda Canada Inc. v Keays (“Honda Canada”), wherein the Supreme Court of Canada reaffirmed the principles established in Bhadauria, “this Court clearly articulated that a plaintiff is precluded from pursuing a common law remedy when human rights legislation contains a comprehensive enforcement scheme for violations of its substantive terms.”

In the result, the Court granted Skyservice’s motion to strike the allegations in the Amended Statement of Claim pleading vicarious liability for sexual harassment and the claims for damages relating to these allegations. Given that the Court held no cause of action based upon vicarious liability for sexual harassment exists at law, no leave to further amend on that legal basis was granted to the Plaintiff. However, the Court did not preclude the possibility of the Plaintiff seeking to further amend her Amended Statement of Claim on other grounds, as permitted under section 46.1 of the Code.

In light of the precedents in Bhadauria and Honda Canada, the Court has reaffirmed that employers cannot be held vicariously liable in civil court for workplace sexual harassment. As the motion before the Court related to the pleadings, it is important to note there has been no finding of liability as against any named defendant in the action.

​Read the August 2022 Charity & NFP Law Update