This blog was written by Flora Vineberg of SpringLaw – a Canadian virtual law firm that advises on workplace legal issues. Visit their website at springlaw.ca to learn more about their firm and resources available, including their award-winning blog.
Introduction: Part 2
During Part 1 of this blog, we outlined three initial legal options for survivors of sexual assault and/or harassment in the workplace context. These included filing a workplace complaint, filing a grievance if you are in a unionized setting, or submitting an application to the Human Rights Tribunal of Ontario (HRTO). Here, we continue to outline the remaining three options for legal redress in this context.
Asserting a Constructive Dismissal
Per Ontario’s Occupational Health and Safety Act, your employer is responsible for ensuring a safe, harassment-free work environment. If you resign from your employment you typically will not be entitled to any compensation from your employer. If you are terminated, you will typically be entitled to notice of termination – colloquially known as a “severance package”. However, the law has carved out an exception in circumstances where the employer’s conduct has been so bad that you essentially have no choice but to quit. This is called a “constructive dismissal.” Depending on the facts of each case, asserting a successful constructive dismissal claim could result in a damages (compensation) award comparable to what you would have been entitled to had you been terminated. If your constructive dismissal arose out of the context of being sexually harassed or assaulted at work, you may also be entitled to additional forms of compensation including human rights or general damages.
Civil Litigation: Suing for Damages
If you experience sexual assault or harassment at work, you may have the option to sue your abuser (individually) as well as your employer in some circumstances. The extent to which a lawsuit makes sense will depend on a variety of factors, and these cases can often be quite complex and time-consuming. In Ontario, there is no statute of limitations for suing someone based on sexual assault and/or assault in the context of a power differential. If you are considering filing a lawsuit, please get in touch with us first for more information.
Criminal Law: Reporting to Police
As a survivor of sexual harassment or assault, you always retain the right to report your allegations to the police; there is no contract, release, or agreement that takes way this right. In Ontario, there is no statute of limitations for making a report to the police. Going through the criminal process can be extremely difficult, and potentially re-traumatizing. If you have any questions regarding reporting to police and/or implications this may have on your employment, please contact us for more information.
Conclusion: Part 2
Your employer should have Anti-Violence, Anti-Harassment and Anti-Discrimination Policies regulating conduct in your workplace. These are meant to promote and ensure a safe work environment. If you experience sexual harassment or sexual assault at work, please contact us to discuss your various legal options.
If you are an employer and would like guidance or additional information on conducting trauma-informed workplace investigations, please get in touch.
Written by: Flora Vineberg