The Ontario Superior Court recently pronounced that alleged acts of workplace sexual harassment, including alleged incidents occurring in the workplace, are not connected to employment but are separate matters: Watson v. The Governing Council of the Salvation Army of Canada. Further, the Court held that the employer’s release did not bar claims based on these allegations.
Drawing a clear distinction between workplace sexual harassment and employment is a new and unexpected approach in this context. Watson seems inconsistent with the Occupational Health and Safety Act which addresses this form of harassment as a workplace safety issue and the Human Rights Code which expressly prohibits harassment in the workplace because of sex among other employment specific protections. It remains to be seen how subsequent decisions will apply Watson. In any case, Watson is a timely reminder that standard form release language may not shield employers against workplace sexual harassment claims.
A one-size-fits-all release is an outdated concept. It is increasingly important for employers to draft the release to reflect the particular circumstances at the time the settlement is entered. Legal counsel should invariably be involved in this exercise.
Generally speaking, the release should name the specific claims that the parties intend to be covered. Appropriate language should also address more general claims, i.e., any claims the employee may have but he or she has not raised with the employer. While language that speaks to claims in a general sense may not always hold up in court, its inclusion is nevertheless recommended as a potential deterrent to bringing a claim. Future court decisions might shed light on specific language that courts will uphold or whether other claims in addition to workplace sexual harassment cannot be barred with generic language.
The plaintiff was employed by the Salvation Army as a thrift store manager for 4 months in 2011. The reason why her employment ended is not entirely clear from the decision. In any case, the Salvation Army provided her with a settlement (a payment of $10,000 and a period of group benefits continuation) in exchange for her signing a settlement agreement and a Full and Final Release. The relevant provisions in the Release were as follows:
2. In accordance with the terms of settlement outlined in the attached letter dated August 8, 2011, I, Emma Oliveira Watson, agree to release any and all claims I have or may have against The Salvation Army, past, present or future, known or unknown, which arise out of or which are in any way related to or connected with my employment or the ending of my employment.
3. This release of claims shall include any claims against anyone or any organization in any way associated with The Salvation Army which arise out of or which are in any way related to or connected with my employment or the ending of my employment.
The plaintiff brought an action against the Salvation Army and its former employee, Mr. Court, in 2016. She sought damages for negligence, intentional infliction of emotional harm and breach of fiduciary duty, but the substance of these claims was alleged sexual harassment by Mr. Court. Mr. Court, a director-level employee, had been dismissed for cause in 2015 following an investigation into a sexual harassment complaint brought by another individual. In the course of the investigation, multiple complaints against him were made by current and former employees, including the plaintiff.
The Salvation Army and Mr. Court brought a summary judgment motion to dismiss the plaintiff’s action. The plaintiff settled the matter with the Salvation Army but she continued her claim against Mr. Court as the sole defendant. Mr. Court proceeded with the summary judgment motion.
Mr. Court’s motion was brought on the following grounds: (i) the Release barred the plaintiff’s claims, (ii) the Human Rights Tribunal of Ontario (HRTO) has exclusive jurisdiction, and (iii) the evidence does not support the claims. The Court rejected each of these grounds, as described below, and dismissed the motion.
Release barred the claims: The Court accepted that the scope of the Release was the employment relationship and acknowledged that “many of the alleged events occurred at the place of employment and, perhaps, because of the employment.” However, the Court concluded that sexual harassment, intimidation and other improper conduct are “clearly separate matters” not connected to employment. The Court also noted that the 2011 settlement pertained to severance only and that the employer’s Human Resources manager negotiated the settlement, whereas the Director of Employee Relations handles cases involving sexual misconduct. The above considerations led the Court to deem the Release language insufficient and hold that language specific to the plaintiff’s claims would need to be added to the Release to bar the claims.
HRTO has exclusive jurisdiction: The Court asserted jurisdiction on the basis that the claim was framed as intentional infliction of emotional harm, and not sexual harassment. The Court also reiterated that sexual harassment and employment are separate matters.
Evidence does not support the claims: The Court found that the plaintiff did present detailed evidence in support of her claim. The Court also noted that sexual misconduct and harassment often goes unreported and the impact of such conduct is sometimes realized after the fact.
We will monitor the progress of this case including any appeal of the Superior Court’s decision.
- With thanks to Aaina Grover for her assistance with this article.