As noted, there is a distinct difference between “general reprisal” and “sexual reprisal”. General reprisal is reviewed in detail here.

A fundamental difference in Ontario is that the employer is responsible for general reprisal but not for sexual reprisal. Sexual reprisal, that is the refusal to accede to sexual solicitations, following which negative repercussions ensue, is a substantively different offence.

As noted above, in Ontario such an offence does not attract employer liability ¹. A further significant difference between the two offences is that with respect to the general reprisal provision, there is no need to prove the merits of the case which is threatened. A legitimate belief will suffice.

The general trend of “sexual reprisal” is to define such conduct to be within the rubric of sexual harassment ².The employer will then defend in the normal course which will include the “due diligence” defence as may be allowed in the relevant jurisdiction³.

 

 

 

1. This presumes no application of the organic theory of liability.
2. Nova Scotia’s Human Rights Act is a good example. It defines “sexual harassment” to mean “a reprisal or threat of reprisal” …”for rejecting a sexual solicitation or advance”.
3. Canada, Manitoba, Yukon and New Brunswick