By: Anne-Marie Langan*
Experiencing sexual harassment in your workplace can have devastating consequences, including experiencing anxiety, depression, symptoms of Post Traumatic Stress Disorder, reduced self-esteem and confidence, headaches, sleep difficulties and other health consequences. Your career goals can also be impacted by job loss, decreased job satisfaction, not being provided with the same training and promotion opportunities as others and the damage that sexual harassment can cause to the workplace culture and your relationship with co-workers and management. [i]
This article will explore several options for seeking legal remedies for the damages incurred because of workplace sexual harassment in Ontario and the pros and cons of each option, including bringing a claim to the Human Rights Tribunal of Ontario, bringing a civil claim, and claiming WSIB benefits.
HUMAN RIGHTS TRIBUNAL OF ONTARIO
Sexual harassment is expressly prohibited in the Human Rights Code[ii] as follows:
Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by their employer or agent of the employer or by another employee. R.S.O. 1990, c. H.19, s. 7 (2); 2012, c. 7, s. 6 (2).
The Human Rights Code also recognizes that damages for sexual harassment can be more significant if the person doing the harassing is "in a position to confer grant or deny a benefit or advancement," particularly "reprisal or a threat of reprisal for the rejection of a sexual solicitation." [iii] The HRTO will also award additional damages if they find that the employer reprised against the worker for having made a complaint about sexual harassment.
You must bring a claim related to sexual harassment in employment to the HRTO within one year of the last incident of discrimination and/or sexual harassment you experienced.
a) Types of remedies available at HRTO
The Human Rights Tribunal of Ontario enforces the Human Rights Code. The types of damages you can seek from HRTO[iv] related to sexual harassment include:
1. Compensation for injuries to your dignity, feelings, and self-respect: Although this type of damage is hard to quantify, the HRTO has awarded up to $200,000 in damages to claimants who have experienced severe and repeated incidents of sexual harassment in the workplace context[v]. The average compensation award for this type of complaint has increased substantially in the past 10 years from $12,000-$15,000 to $30,000- $50,000. Some of the factors the HRTO will consider when assessing damages are the severity of the conduct, the number and frequency of incidents, the vulnerability of the complainant, and the impact that the conduct had on the target's mental health. [vi]
2. Loss of income: If you lost income from employment because of sexual harassment or were denied benefits and bonuses, the tribunal can compensate you for this.
3. Reimbursement: If you have incurred expenses, such as treatment expenses related to the damage to your health caused by the sexual harassment or costs because you had to move due to the sexual harassment, HRTO can reimburse you for these.
4. Non-monetary Remedies: The HRTO can order remedies that a court is incapable of, such as reinstatement to your former position, which would put you back in the position you would have been in if the discrimination had not occurred. They can also order people to apologize to you, which is not something a court would do.
5. Public Interest Remedies (PIRs): The HRTO can order the employer to comply with the code, such as providing training to management and employees, improving their HR policies, etc. This aims to prevent similar harassment and discrimination from happening in the future.
b) Advantages of Pursuing a Claim at HRTO
One advantage of pursuing a claim at HRTO is that, unlike court actions, there are no filing fees and no risk of cost awards against you if your claim is dismissed. As noted above, there are some remedies that HRTO can order (such as reinstatement, training, and policy changes) that courts cannot grant you. Furthermore, the damages for injury to your feelings, dignity and self-respect are not taxable, and most income replacement programs do not consider this income and do not claw it back.
c) Disadvantages of Pursuing a Claim at HRTO
You can only pursue claims of discrimination at HRTO. As a result, if you have other legal issues related to your employment, such as wrongful dismissal or breach of contract, you would have to pursue those separately. There are long delays at HRTO due to a large backlog of files. [vii]
CIVIL CLAIMS
To make a civil court claim relating to sexual harassment in the workplace, there must also be other legal issues for the court to deal with, such as assault or other forms of harassment that are not related to human rights, a wrongful or constructive dismissal, breach of contract issues or another tort such as defamation. [viii] The claim must be brought within 2 years of the last related incident. If the damages are predicted to be less than $35,000, the claim should be brought to a small claims court. Any claim over $35,000 can be brought to the Superior Court of Justice.
a) Types of Remedies the Court can Order:
The civil court can award many remedies including, but not limited to:
1. Pay instead of notice: If the worker was terminated without the proper amount of notice, for discriminatory reasons or out of reprisal for having complained about workplace harassment, the court can order the employer to pay an amount representing the amount of notice that should have been given. This is a complex calculation based on factors such as the age of the Plaintiff, the amount of time they worked for the employer, the amount of their pay, the nature of their employment and whether any exceptional circumstances could make it more difficult for that employee to find alternative jobs such as a disability, pregnancy, etc...[ix]
2. Human Rights Damages: The court can award an amount to compensate the claimant for the injury to their dignity, feelings, and self-respect caused by the defendant(s) 's discriminatory behaviour.
3. Moral Damages/ Punitive Damages: If an employee can provide evidence that they were dismissed in a manner that caused them mental distress, the court can award damages for this over and above the amount of pay instead of notice[x]. Punitive damages can be awarded if the employer is shown to have acted in bad faith in the manner of dismissal.
4. Reimbursement of Expenses: The court can order an employer to reimburse an employee for treatment, moving expenses, etc. if these expenses can be linked to the employer's actions.
b) Advantages of Civil Claims: One advantage of bringing a civil claim is the ability to bring up legal issues that arose in your employment unrelated to sexual harassment. Also, the amount of damages awarded for human rights, moral, and punitive damages often exceed the compensation awarded by HRTO.
c) Disadvantages of Civil Claims: There are many downsides to bringing a civil claim, such as the risk of being ordered to pay the other party's legal costs if you are unsuccessful, the time it takes to get to a hearing if the matter doesn't settle, and the difficulty of navigating the rules and paperwork related to such a claim.
WORKPLACE SAFETY AND INSURANCE BOARD
When sexual harassment occurs in the employment context and causes the victim to require time off work and/or to seek treatment, this could be considered a compensable workplace accident. Depending on the nature of the sexual harassment, a claim can be made under the Traumatic Mental Stress or Chronic Mental Stress Policy. A claim must be made within 6 months of the date of injury.
A worker can claim under the Traumatic Mental Stress policy if they have suffered injuries because of a traumatic instance or several traumatic instances of workplace harassment, which WSIB defines as to "engage in a course of vexatious comment or conduct against a worker, including bullying, that is known or ought reasonably to be known to be unwelcome" [xi].
A worker can also claim under the Chronic Mental Stress policy for workplace harassment if the harassment caused a significant stressor, which resulted in an "appropriately diagnosed mental stress injury" [xii].
a) Types of benefits available
1. Loss of Earnings Benefit[xiii]: An injured worker who has lost time from work due to their injuries may be entitled to Loss of Earnings Benefits, which represent 85% of the income you usually would have received from employment.
2. Health Care Benefits [xiv]: WSIB will reimburse workers for treating work-related injuries. This can include the costs of counselling or other therapies for PTSD related to having experienced sexual harassment in the workplace. WSIB will also reimburse you for the travel expenses for treatment.
3. Return to Work Benefits[ xv]/ Work Transition Benefits: WSIB provides benefits for injured workers who cannot return to their previous employment and/or retrain for another type of employment due to their injuries.
4. Non-Economic Loss Benefits[xvi]: Non-Economic loss benefits are for injured workers with a permanent impairment because of workplace injury. The amount given depends on the degree of permanent impairment the worker is assessed. These benefits are akin to damages for pain and suffering and are not taxable or deducted from other benefits such as Employment Insurance or Ontario Disability Support Benefits.
b) Advantages of Pursuing a Claim with WSIB: If WSIB approves your claim, you will receive more in loss of earnings than you would if you claimed sick benefits from employment insurance. As well, your related healthcare costs will be covered by WSIB. Depending on what you do for a living, there can also be a substantial benefit to receiving assistance in retraining if you cannot return to work.
c) Disadvantages of pursuing a claim with WSIB: up to 94% of mental injury claims are denied by WSIB, and the appeal process can be long and stressful[xvii]. Making a claim for WSIB may also interfere with your ability to seek remedies from a grievance process, civil court and the Human Rights Tribunal, as WSIB has "exclusive jurisdiction to examine, hear and decide all matters and questions arising under the [WSIA], except where [the WSIA] provides otherwise." [xviii] Finally, the amount of damages you are awarded under the non-economic loss benefits is often much lower than the damages awarded by HRTO, the civil courts and through a grievance.
CONCLUSION:
Before bringing a claim of any kind related to sexual harassment, it is highly advisable to seek the advice of a lawyer so they can provide guidance about what type of claim would work best in a particular situation and prevent a situation where a claim is brought in the wrong venue, thereby potentially barring a different kind of claim from being brought. There are several options for obtaining free legal advice in Ontario, including SHAPE (Sexual Harassment Advice Prevention Education), a coalition of community legal clinics providing free public legal education and legal advice about preventing and addressing workplace sexual harassment. As part of this project, we offer free workshops for students, service providers, employers, and employees on topics related to rights in employment, particularly the right to have a psychologically safe work environment. We also publish blogs on related issues, which you can find at www.pclcsvprojects.com, and we have an awareness campaign through our social media sites. For more information or free legal advice related to sexual harassment, go to www.shapeyourworkplace.ca, call 1-800-850-7882 or email us at info@shapeyourworkplace.ca.
*Anne-Marie Langan BA, BSW, LL.B., LL.M. is the project lead for the sexual violence projects at Peterborough Community Legal Center, including the SHAPE project, which provides legal advice and education for those experiencing sexual harassment in the workplace and the Your Way Forward project which provides support for those who have experienced intimate partner sexual violence. These projects are sponsored by the government of Canada's Justice Department and Legal Aid Ontario. She can be reached directly at anne-marie.langan@ptbo-nogo.clcj.ca .
Disclaimer: This post contains general legal information as of January 22, 2025, that may or may not apply in a particular situation. It is important to note that the law, government policies and available programs can change, and this blog will not be updated to reflect these changes. It is highly recommended to seek legal advice from a lawyer.
Endnotes:
[i] Ramaco College (2017, January 31). Consequences of sexual harassment. Title IX. https://www.ramapo.edu/titleix/sexual-harassment-resources/consequences-sexual-harassment/#:~:text=For%20Victims,to%20interpersonal%20relationships%20at%20work.&text=In%20addition%2C%20in%20the%20higher,unproductive%20working%20and%20learning%20environment.
[ii] Human Rights Code[ii], R.S.O. 1990, c. H.19, s.7(2)
[iii] Ibid. s.7(3), s.7(4)
[iv] HRLSC. (2023, July 6). Additional information – section 8 (remedy). Human Rights Legal Support Center. https://hrlsc.on.ca/how-to-guides/completing-and-filing-an-hrto-application/additional-informationsection-8-the-remedy/#:~:text=Public%20interest%20remedies%20can%20have,from%20happening%20in%20the%20future
[vi] Honor M Lay, Assessing the Damage: Money Awards by the OHRT in Sexual Harassment Cases, 2019 9-2 Western Journal of Legal Studies 1, 2019 CanLIIDocs 1745, <https://canlii.ca/t/sj8w>, retrieved on 2025-01-06
[vii] Tribunal Watch Ontario. (2024, May 21). The Human Rights Tribunal of Ontario: A continuing crisis. https://tribunalwatch.ca/2024/the-human-rights-tribunal-of-ontario-a-continuing-crisis/
[viii] Can I file a civil claim for sexual harassment?*. (n.d.). https://hrlsc.on.ca/wp-content/uploads/2024/08/Legal-Info-Booklet-7-Can-I-File-a-Civil-Claim-for-Workplace-Sexual-Harassment-ENG-DIGITAL-Nov-17-1-au.pdf
[ix]Bune Law Articles. (2022, April 6). How to calculate wrongful dismissal damages. Employment Lawyer Toronto. https://bunelaw.com/how-to-calculate-wrongful-dismissal-damages/
[x] Moral damages awarded to the dismissed employee. Rudner Law. (2023, December 18). https://www.rudnerlaw.ca/moral-damages-awarded-to-dismissed-employee/#:~:text=Moral%20damages%20are%20one%20such,of%20the%20reasonable%20notice%20period.
[xi] Traumatic mental stress. WSIB. (n.d.-e). https://www.wsib.ca/en/operational-policy-manual/traumatic-mental-stress
[xii] Chronic mental stress. WSIB. (n.d.-b). https://www.wsib.ca/en/operational-policy-manual/chronic-mental-stress
[xiii] Loss of earnings benefit. WSIB. (n.d.). https://www.wsib.ca/en/loss-earnings-benefit
[xiv] Loss of earnings benefit. WSIB. (n.d.-b). https://www.wsib.ca/en/loss-earnings-benefit
[xv] Getting help with return-to-work. WSIB. (n.d.-a). https://www.wsib.ca/en/injured-or-ill-people/return-work/getting-help-return-work
[xvi] Benefits for non-economic loss. WSIB. (n.d.-a). https://www.wsib.ca/en/benefits-non-economic-loss
[xvii] Should you apply for workers comp? (on). Aftermath. (2023, February 14). https://www.aftermetoo.com/article/should-you-apply-for-workers-comp/on/
[xviii] Litigating workers' compensation issues outside the WSIB and WSIAT. OBA.org. (2020, April 27). https://www.oba.org/Sections/Labour-Employment-Law/Articles/Articles-2020/April-2020/Litigating-Workers-Compensation-Issues-Outside-of
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