Outlined below is the analysis of Order dated 22nd March 2022 in Incognito v. Skyservice Business Aviation Inc. and Peter Bromby, 2022, ONSC 1795, passed by Vermette J. in the Supreme Court of Justice, Ontario.
Facts
The Plaintiff, X was a long-service employee of Skyservice (Defendant No. 1), where Peter Bromby (Defendant No. 2) was the Vice-President of Sales. It was alleged by X that she had been subjected to sexual assault and sexual harassment by Peter Bromby over a period of several years.
X was also subjected to sexual intimidation outside the scope of her unemployment. Additionally, X also underwent breast reduction surgery following years of sexual assault and harassment.
Skyservice ignored the complaints made by X, and such a work culture was tolerated as part of their corporate environment. Additionally, Skyservice did not have any code of conduct that condemned or prohibited any behaviour that encompassed sexual harassment.
X filed the following claims against the two defendants-
- Damages amounting to total of $425,000 against Peter Bromby for Sexual Assault and Sexual Harassment.
- Damages amounting to total of $850,000 against Skyservice, the employer for vicarious liability, as the employer failed to provide her with a safe workplace.
Skyservice’s Argument
The defendant Skyservice brought a motion to strike out the claim of Vicarious Liability under Section 46.3 of the Ontario Human Rights Code.
The defence relied on the basis that the claim did not disclose any civil cause of action and sexual harassment was not a recognised tort in Ontario.
Law
The Ontario Human Rights Code precludes individuals from bringing civil claims against matters dealt with by the code. To seek civil remedy for breach of the Code, the cause of action cannot be solely based on the infringement of rights arising from the Code.
Section 7 of the Code prohibits sexual harassment or sexual solicitation in the workplace. Any breach of this provision should be brought before the Ontario Human Rights Tribunal.
Additionally, Section 46.3 of the Code, excludes a company from being vicariously liable for acts of workplace sexual harassment by its agents, employees, or officers.
According to Rule 21.01(1)(b) a pleading will only be struck out if, assuming the facts are to be true, it is evident that the pleadings do not have a reasonable cause of action.
The Decision
The Court granted Skyservice’s motion to strike out X’s claim of vicarious liability as no such cause of action exists in the law. Relying on precedents, the Judge held that the tort of Sexual Harassment does not exist in Ontario.
The Court also noted that as per the Code, the corporation cannot be held vicariously liable for the conduct of its employees in matters of sexual harassment.
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