In Incognito v. Skyservice Business Aviation Inc. The employer made a motion to strike the allegations against it in the Statement of Claim with respect to vicarious liability for sexual harassment, primarily on the basis that in Ontario the tort of vicarious liability for sexual harassment is not a recognized tort that can support a cause of action. The court agreed and granted the motion.
The effect of these provisions is that a Code-based claim made in a civil court must be connected to a cause of action that is unrelated to the Code.
For example, if a plaintiff makes a civil claim for constructive dismissal, a claim under s. If, however, an employee makes only a claim that they were sexually harassed in the workplace in contravention of s. Furthermore, since s. The court also referred to Seneca College v. The court also emphasized that Ontario courts have consistently held that sexual harassment is not an independent tort that can support a cause of action.
In applying these findings to the case, the court confirmed that there is no independent tort of sexual harassment in Ontario. Although the court acknowledged that in Merrifield the OCA did not foreclose the development of a tort of harassment that might apply in appropriate contexts, it stressed that the OCA found that the tort does not exist.
Furthermore, the court emphasized that the nature of the harassment under consideration in Merrifield was not covered by the Code, and the court in Merrifield did not discuss the principles set out in Bhadauria. The court concluded that applying the Bhadauria principles, the claim of vicarious liability for sexual harassment had no reasonable prospect of success and it must be struck.
