Given relatively recent attention given to bullying within the Canada, the legal remedies for the victim are underdeveloped and not at all clear. Although the legal landscape may be difficult navigate, there remain some legal avenues worth exploring, until such time as the law catches up to the issue of bullying.
Broadly speaking there may be legal redress on civil grounds, or on a demonstration that legislation has been willfully breached. In considering or taking such action, individuals are strongly encouraged to consult with qualified legal counsel.
On the regulatory side, victims should consider their rights and responsibilities under the prevailing Human Rights Code or Occupational Health & Safety Act.
The Human Rights Code
The Canadian and Provincial Human Rights Codes protect each of us from harassment which is discriminatory on selected grounds. The “Code” as it is commonly referred, protects us from discrimination resulting from race, national/ethnic origin, color, religion, age, sex (including pregnancy and child birth), marital status, family status, pardoned conviction, physical or mental disability (including dependence on alcohol and drugs), and sexual orientation.
Under the Code, Harassment is a prohibited activity in the context of employment. By way of example, the following sections of the Ontario Code state:
Section 5(2) - “Every person who is an employee has a right to freedom from harassment in the workplace by employer or agent of the employer or by any other employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap”
Section 7(2) – “Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee”
Harassment is defined in the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known as unwelcome”. When considered in the context of
behaviour known as “bullying” there may well be some recourse providing that the offensive behaviour can be linked to the prohibitive actions specified in the Code.
If an individual can demonstrate that bullying is motivated by one of the prohibited grounds the Code may apply. If you suspect that this is the case, a call to your Human Rights Commission in your province may provide you with valuable information in making a determination as to your rights. In addition, a consultation with a lawyer proficient in both Human Rights Legislation and Labour Law may be of benefit. Many provincial Law Societies have a “lawyer referral service” that can provide you with the names and numbers of qualified lawyers in your area.
Occupational Health & Safety Act
Each province has an Occupational Health & Safety Act which applies to employers within the province to ensure that they provide their employees with a “safe” workplace. Federally regulated employers are governed by the Canada Labour Code, of which Part II is the Federal Occupational Health & Safety Act.
Part II of Canada’s Labour Code which applies to federally-regulated employees was amended and received Royal Assent in June 2000 with the intent of improving occupational health and safety in the federal workplace. It strives to create a better balance between the role of government and that of employers and employees, and reflects changes in the workplace such as advances in technology that have a bearing on employees' health and safety. Although, Regulations have yet to be issued, the legislation is law and should be heeded by Federally-Regulated employers. Of particular importance is a new clause which has been added allowing for regulations which deal with the establishment of anti-violence initiatives.
The regulations as of March 2003, have yet to be issued, however, there is reason to believe that indirect or psychological acts of “violence” may be covered. In the interim, victimized employees should be aware of their governing Occupational Health & Safety Act to determine if there has been a breach of this legislation within their own province. We suspect that once the Federal Government tables its regulations regarding workplace violence, many provinces will follow suit.
Employers have a responsibility to take reasonable care to provide their employees with a safe workplace. Provinces currently differ in their approach to the issue of workplace violence. B.C. and Saskatchewan have clauses entrenched in their Occupational, Health & Safety Acts which focus specifically on violence, although they differ in terms of definitions and remedy. Other provinces are either considering this issue, or have decided to refrain from taking such action. Recently Bill 70, a Private Members Bill, was tabled in the Ontario Legislature addressing workplace violence, however, there is disappointing speculation that it will not and/or has not advanced beyond first reading. Regrettably, one might reasonably suspect that when regulations for Federally Regulated employees are implemented the issue of workplace violence as a bonafide “health & safety” concern will have more urgency.
Although an individual may wish to press the issue of bullying under the prevailing Occupational Health & Safety Act of their province, one can see that there may be differing outcomes resulting from the province’s track record on this issue. In is not uncommon for such complaints to be deferred to the Human Rights Commission for action (Au v. Lyndhurst Hospital, Meridian Magnesium Products Limited).
If one were to launch a compliant under the Act, or refuse unsafe work because of bullying behaviour, one should reasonably expect protection from reprisal under the Occupational Health & Safety Act providing that their action is not trivial or malicious.
Before considering this as a route of compliant, legal consultation should be sought to ensure your rights and responsibilities.
There is a suggestion that Bullying could, in certain circumstances, constitute “wrongful dismissal”. Generally speaking, this is defined by circumstances in which an employer, although not acting explicitly to terminate a person’s employment, acts unilaterally to alter the employment terms and conditions such that the employee is entitled to regard the employer’s conduct as a termination. The case of Shah v. Xerox Canada is noted in this regard when focusing on the “conduct” of the employer. Here an individual was deemed to be “construdismissed because the conduct of the employer made continued employment “intolerable”.
Again, the application of constructive dismissal varies depending on the situation and on the conduct of the employer in question. Given the complexities of this issue, legal counsel is most certainly required.
Intentional Infliction of Nervous Shock
Although on the surface, this concept appears an appropriate argument for seeking redress from the workplace bully, legal guidance is require to ensure that your situation meets the legal test of such acts.
It must be demonstrated that the behaviour in question is “outrageous”, “calculated to produce the effect that was actually produced” and that the “conduct produced actual harm by way of a visible illness”.
As one can quickly see, there is a challenge in demonstrating any one of these conditions. Although the task may appear daunting on the surface, some individuals have been successful in advancing this argument. Prinzo v. Baycrest Centre for Geriatric Care describes a circumstance in which the actions of a supervisor and other employees were deemed to be deliberate and resulted in emotional upset, increased blood pressure, weight gain and an increase in the employee’s diabetes symptoms. Likewise, in the case of Boothman v. Canada the employee was awarded damages for intentional infliction of nervous shock because her supervisor subjected her to numerous and continuous acts of assault and intimidation. In addition, the court upheld a judgment of “nervous shock” in the case of Bogden v. Purolator Courier Ltd sighting a confrontational and brash management style.
These are but a few of the legal initiatives that victims have or can consider when seeking redress in the case of workplace bullying. However, individuals should remain cognizant that Canadian law in this arena is fluid and in a developmental phase. Prevailing law is built on the judgments rendered in each successive case which finds its way into court. This means that unless there are legal challenges there is little hope for change. If you are in doubt and feel that you have exhausted all other avenues, consideration should be made to seek the appropriate legal counsel, out of responsibility for yourself and others. This is not the time to be a spectator when bullying and intimidation is affecting your life or those you care about.
In many instances organizations have policies and procedures to protect employees against harassment and other forms of abuse. One should exhaust these avenues before considering legal action unless in severe circumstances.
Whatever route a victimize employee takes to stop the abuse and prevent the circumstances form happening to others; ensure you take very detailed and easily retrievable notes of all instances and efforts to defend yourself. These documents will prove invaluable in whatever route you take to remedy the situation, whether it is through internal channels or through the courts.
Many individuals have written to ask if there were specific support groups for victims of bullying. Unfortunately there are none that I am aware of in Canada, although I suspect that this will change as people continue to identify this type of behaviour as being abusive and intolerable.
The road to recovery is in part dependent on the nature and length of time one has endured bullying behaviour. It is critically important from the outset to understand that you are not the architect of a bully’s behaviour. You have the right to work without intimidation and at no time should the victim be blamed for the behaviour of the perpetrator. Searching out the support and guidance of an experienced counselor is very important in the event that you lack a personal support network. Isolating yourself during a time when you need the affirmation of others may only deepen the wounds and reinforce the warped beliefs of the perpetrator in your own mind…the most dangerous of which is that you deserved this.