Should the context of the case not allow a civil action due to the barrier of the workers' compensation statute, as discussed above, the victim may still be able to sue the alleged offender personally. The plea may also be made that the employer is vicariously liable for this action.
The Test
The test of what conduct may be “work related” is far different from the broad views taken by the human rights tribunals and indeed by the civil courts.
The issue to be determined is whether the personal offender is acting in an employment related capacity with respect to the alleged offensive actions as contained in the statement of claim. Two factors will then be important.
The first is whether the conduct is work related and the second was that the employer had not condoned or accepted a lesser standard of conduct.
Early cases required the evidence to show conduct which was wilful or reckless to allow the civil proceeding. 1 2 Mere carelessness on the part of the alleged wrongdoer will not suffice. 4
There was no allegation of sexual impropriety nor did the plaintiff allege that the conduct which caused her harm was intentional. This conduct was found to be “not reasonably incidental” to the role of the defendant as an executive officer. In this particular case, he had been advised not to engage in such activities previously. A malign intent was not required. The action was allowed to proceed.