Law Times

Law Times • OctOber 27, 2014 Page 7 www.lawtimesnews.com COMMENT Case sheds light on employee civil suits for physical, emotional harm by daVid harris For Law Times W hile an employee's right to launch a civil lawsuit despite workers' com- pensation coverage is a complex area, a recent decision sheds some light on when such claims may be possible. Given recent jurisprudence that has concluded that emotional distress claims are eligible for coverage un- der the Ontario statute, it seems clear that an employee can't bring a tort action against the employer in a civil court and hence must bring an application for workers' compensation benefits. This is so for claims for physical and emotional distress. The same is true for actions for loss of employment founded on constructive dismissal based on the same facts, such as harassment, that led to the emotional or physical distress claim. Victims may not lose the entirety of the civil action, however, as in certain situations they may be able to sue the alleged offender personally alongside a claim for ben- efits under the statute. This issue arose recently at the Workplace Safety and Insurance Tribunal in its decision in Case 727/13 earlier this year. The employer, Atotech Canada Ltd., and the personal defendant, identified only as G. Torcoletti, an executive officer of the company, moved before the tribunal to re- move the plaintiff 's right to sue civilly upon the launch of such an action in Kitchener, Ont. The plaintiff had alleged the personal defendant, without her consent, manipulated her neck while she was sitting in the company boardroom and, in so doing, had caused her serious personal harm. There was no al- legation of sexual impropriety, nor did the plaintiff allege that the conduct that caused her harm was intentional. The human resources manager testified she had had n o complaints about Torcoletti's conduct but noted that, based on her own observations, she had instructed him not to be physically demonstrative and had warned him not to touch employees or customers, except as neces- sary, such as when shaking hands. It was clear the plaintiff was doing normal workplace activities when she sustained the alleged injuries and the statute would bar a civil action against her employer. Section 26 of the Ontario legislation provides: "Entitle- ment to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker's survivor or a worker's spouse, child or depen- dant has or may have against the worker's employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employ- ment of the employer." The issue in this case was whether the above section also barred a claim against the personal defendant. The test, the panel determined, was whether Torco- letti was acting in an employment-related capacity at the time of the alleged offensive actions. The panel made two important findings: The conduct wasn't work related and the employer hadn't condoned or accepted a lesser standard of conduct. "I find that is appropriate to analyse Mr. Torcoletti's conduct with reference to the standards established through the foregoing decisions, particularly the question of whether an action was condoned in the workplace," wrote tribunal vice chairwoman Rosemarie McCutcheon. "Applying this reasoning, I find that Mr. Torcoletti's action in giving Ms. Scott a neck manipulation or mas- sage was not reasonably incidental to his role as an ex- ecutive officer of the company. Decision No. 695/96 considered whether the horseplay is condoned in the workplace; in this case, it is evident that Mr. Torcoletti's actions were not condoned: he had specifically been in- structed by the HR Manager to refrain from making un- necessary physical contact with employees or clients." The panel also referenced the board policy with respect to work-related conduct. It looks at the duration and na- ture of the activity as well as the extent to which it deviated from the worker's regular employment activities. In determining whether an activity was incidental to the employment, the decision-maker should take into consideration the nature of the work and work en- vironment as well as the customs and practices of the particular workplace. In the application of this test, the panel found that the personal defendant had acted outside the course of his employment and hence allowed the action against him. "In this case, Mr. Torcoletti's ac- tions were short in duration, but the nature of the activity, that is, administering a neck manipulation or massage, deviated substantially from his regular activity as an executive officer," wrote McCutcheon. "In addition, the actions took place in an office envi- ronment, in which horseplay and physical contact are not the norm. The customs and practices of this workplace are demonstrated through the HR Manager's prior warnings to Mr. Torcoletti to refrain from physical contact with em- ployees and clients. This demonstrates that such physical contact was not condoned in this particular workplace. "Furthermore, there was an element of intention in that Mr. Torcoletti's actions were not taken by mistake or accident: he deliberately placed his hands on Ms. Scott for the purpose of administering some type of massage or manipulation. This conduct had nothing to do with his work activities as an executive officer and the element of intention is heightened by the fact that he had been ad- vised that this type of behaviour was not acceptable in the workplace, yet he still decided to make physical con- tact with Ms. Scott without her consent." For those reasons, the tribunal allowed the action. Barry Fisher, a Toronto employment law mediator, says that if the employee in question is the directing mind of the employer, the personal claim may raise complications as the respondent's actions are, in effect, those of the company. The summary of the law, given a workplace tort and workers' compensation coverage, is there will be no civil action against the employer for physical and/or emo- tional harm; there will be no civil constructive dismissal claim where the grounds for it rest on facts that did or can lead to a workers' compensation claim; but there can be a civil claim against a personal wrongdoer for actions found to be outside of the normal course of employment and not condoned by the employer. The law, then, con- tinues to develop. LT David Harris, a former lawyer, is one of the authors of the new book, Disability Issues in Employment Law, as well as Wrongful Dismissal , published by Carswell. u SPEAKER'S CORNER Liberal justice critic hopes to address other areas besides crime W ith its obsession with crime legislation and tougher sen- tences, Liberal justice critic Sean Casey believes the Conservative government is falling short when it comes to addressing other issues. For one thing, he says that despite what the government wants us to believe, longer sentences and mandatory minimum jail terms don't lead to fewer victims of crime. What's key is trying to find out why people commit crime. "I want justice policy to be built around a restorative and rehabilitative approach to criminal justice founded on social science instead of ideology and bumper stickers," says Casey. The Prince Edward Island lawyer could easily end up as justice minister if Liberal Leader Justin Trudeau sweeps into power in the next general election a year from now. He asks why the government focuses almost solely on criminal law when there are all sorts of other justice problems in Canada from the delays in the courts to the cost of litigation and the selection of Supreme Court judges. "We've had almost no discussion in Parliament about a broader justice agenda that does not relate solely to criminal jus- tice," he says. Instead, we have a government justice agenda based on sloganeering driven by a conservative ideology, he says. "That's the attitude of the present gov- ernment. I think that the attitude of a go vernment to justice policy, and criminal justice in particu- lar, needs to be more sophisti- cated than that." Casey believes we're focus- ing so much on criminal law that we haven't paid proper at- tention to other areas of justice such as matrimonial, custodial, civil, and copyright cases as well as other matters within the jurisdiction of the Federal Court and the Tax Court. Our entire system of justice needs a "thorough examination," he says, to find out what's working and what's not rather than having everybody in the Justice Department focused on drafting laws to be tougher on crime. "Access to justice in family law cases is something very much at the forefront of the Canadian Bar Association," he says. "I'm not sure the bar association has had a willing partner in the federal government to deal with the problems of family justice. This government doesn't play well with others on federal-provincial justice issues, whether it's judges or the bar association." It may be that once we've examined the justice system from a perspective other than criminal law, we'll find things are working just fine, says Casey. That would be great. But we do know litigation is working more slowly and is more expensive than ever, he notes. What about trying to dispense jus- tice in a more cost-effective way, possibly using alternative dispute reso- lution or making better use of technology? Casey is clear there are sev- eral areas that need attention. The government is grossly un- derfunding legal aid, he says, adding it has also done "a lousy job about offshore tax evasion." Casey also says the govern- ment's cyber-bullying legisla- tion, bill C-13, is "a shining ex- ample of making bad law." No one disputes that police need bet- ter tools to fight cyber crime, he says, but letting them go through online accounts without a search warrant approved by a judge isn't the way to do it. The government, he says, took cyber- bullying legislation that was so simple and clear that it would have passed "a voice vote" in the House of Commons and turned it into an omnibus bill that included all sorts of things and special powers for police that had nothing to do with that issue. "It's bloody awful that the government has taken the opportunity presented by the public outrage over cyber bullying and used it to resurrect the ghost of Vic Toews," he says. Toews was the Conservative cabinet minister who a few years back said op- position MPs who voted against giving police the right to search computer files without search warrants were on the side of child pornographers. He had to apologize and can his legisl ation and eventually left politics. Now the Conservative government is trying to bring back similar legislation. "It'll take a future government to assess the im- pact on the privacy of Canadians and make the necessary adjustments," says Casey. Casey says the Harper government is "daring the opposition to vote against their legislation so that it can say in the next elec- tion that the opposition wouldn't stand up for victims' families." When it comes to the effectiveness of government crime bills, Casey suggests the Conservative plan to boost the sex of- fender registry won't reduce the number of people who commit such crimes. But he notes it will help the Conservatives collect more money from their political base and it looks good on bumper stickers. In the meantime, Conservative back- benchers have begun introducing many of the crime bills the government ends up supporting. There's a good reason for that. Private members' bills don't require vetting ahead of time against the Charter of Rights and Freedoms while legislation presented by cabinet ministers must pass constitutional muster. Who cares if the Supreme Court even- tually throws out private members' bills? By that time, the next election is over. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. The Hill Richard Cleroux

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