Investigation May Allow for Defence to Vicarious Liability Claim in Sexual Harassment Complaints

Ontario’s Code has a provision which deems the employer liable for the acts of its employees which may attract liability under the Code. This section, 46.3(1), does not, however, apply to complaints of sexual harassment.

Other jurisdictions have allowed by statute to hold the employer responsible for workplace violations of human rights protections, but have permitted a defence when the employer has shown due diligence, amongst other tests, in investigating the complaint.

Manitoba

Manitoba has enacted legislation which defines the concept of employer liability for the acts of its employees. Provided that the conduct was in the course of employment, the employer is deemed responsible.

However, the employer may show a defence by proving (1) it did not consent to the conduct and (2) took all reasonable steps to prevent it and (3) then took all reasonable steps to minimize or avoid the effect of the offensive actions.

The substance of this provision is repeated in the legislation of the Yukon.

New Brunswick

New Brunswick has similar legislation with respect to a complaint of sexual harassment, which deems the actions of the employee to be those of the employer, and then allows the employer a defence of showing it used due diligence to prevent such conduct.

This defence is not available where the questioned conduct is that of an officer or director of the employer, which basically incorporates the “organic theory” of employer liability described below.

Canada

Essentially the federal legislation now allows for a “due diligence” defence to be raised against the assertion of vicarious liability allowed by section 65(1) and (2).

The employer must show that (1) it did not consent to questioned conduct, (2) and it used all due diligence to prevent event and (3) did all it could to minimize or avoid the adverse consequences.