On April 6th , 1999, a former bus driver with the Ottawa-Carleton Public Transit System a.k.a. OC Transpo named Pierre Lebrun walked into his old job with a Remington high-power hunting rifle, killed 4 of his co-workers, injured others, and finally turned the gun on himself. The inquest that followed revealed that Lebrun had been harassed by co-workers for years about his severe speech impediment and facial tick. When he told management, they ignored him until they no longer could. For Canadians who had spent years watching war vets and mailmen go ‘postal’ south of the border, the OC Transpo shooting was their first real exposure to what we commonly know as ‘workplace bullying’.

Valerie Cade, a Canadian workplace bullying expert and author of Bully Free at Work: What You Can Do to Stop Workplace Bullying Now! (2008), defines bullying as behaviour that is “disrespectful, deliberate and repeated toward one, but not others, or one group but not other groups, for the bully’s gain”. Though bullies do harass others, bullying and harassment are not the same. Harassment can be a occasional, but bullying typically involves a sustained pattern of behaviour aimed at a particular target.

According to Cade’s checklist or those of agencies like the Canada Safety Council (CSC) and the Canadian Centre for Occupational Health and Safety (CCOHS), bullying can be physical, but it’s usually psychological and includes:

  • Physically abusive or aggressive behaviour such as pushing, hitting, finger-pointing or standing close to the victim in an intimidating manner or threatening abuse.
  • Tampering with someone’s personal belongings and work equipment and invading their privacy.
  • Verbally abusive behaviour such as yelling, insults, name-calling and/or using profanity. A favourite is humiliating the target in front of others in public.
  • Being two-faced and spreading malicious rumours about the target personally or professionally to ruin their reputation.
  • Socially excluding and isolating the target
  • Belittling the victim at staff meetings or project updates, criticizing them constantly, especially in front of other staff.
  • Sabotaging the target’s work performance by: wilfully withholding necessary information or purposefully providing incorrect data.
  • Constantly changing work guidelines, assigning an unreasonable workload, and establishing impossible deadlines that set the victim up to fail.
  • Blocking applications for training, leave or promotion without just cause.
  • Taking away authority and responsibility from the targets without just cause and deliberately underemploying them to make them seem less essential to operations.

Arguably, the current numbers on workplace bullying are disturbing.  Jacqueline Power is an assistant professor at the Odette School of Business at the University of Windsor who has studied workplace bullying for years. According to her research, 40% of Canadians have experienced one or more acts of workplace bullying at least once a week in the last six months. Last year, the CSC reported that 20% of workers witnessed a co-worker being bullied and 75% of victims left their job and that workplace. Out of that 75%, only 40% leave voluntarily, 24% are terminated and 13% transfer out. Out of all these cases, only a piddly 23% of the perpetrators ever got punished. Why? Because according to a 2007 study conducted by the Workplace Bullying Institute (WBI), 72% of workplace bullies are in a position of authority, making it harder for upper management to get a handle on them. To make matters worse, bullies usually pick on long-term, well-established, hard-working employees who want to get along, not rookies. A lack of intervention can mean the loss of a company’s most talented and competent staff to rival firms because they’re fed up with their toxic work environment. This type of ‘brain drain’ causes the kind of high turnover that can lead to high levels of absenteeism and stress leave, drops in productivity and [ultimately], profits.

In 2013, Mental Health Commission of Canada (MHCC) released its National Standard for Psychological Health and Safety in the Workplace. Though a Senate-appointed commission, the MHCC doesn’t have any judicial force. That means the standard devised in collaboration with other provincial organizations is voluntary and cannot be legally imposed upon any provincial government, agency and/or private firm.

As such, the onus is on each province to address workplace bullying and some have through their respective human rights and labour codes. Please note that provincial legislation does not cover Government of Canada employees working in any province. Federal public servants are subject to the Canada Labour Code, 1985, the Public Service Employment Act, 1985 and the regulatory framework adopted by their unions. Within a union context, a formal complaint triggers the grievance process; a lengthy complex ordeal with multiple stages and players that requires a separate article of its own to properly explain. Consequently, this discussion will limit itself to just Ontario’s private sector employers and organisations that fall under the purview of the provincial or municipal government.

So far, five provinces have added anti-bullying provisions to their workplace safety legislation, including Ontario. In 2009, the Liberal Government passed Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters, 2009.  Although the Act doesn’t provide a definition of bullying per se, subsection 1 (1), outlines the criteria for “workplace harassment” and “workplace violence”, which are bullying-related behaviours.

As noted in last week’s discussion on the tort liability of schools, [see “Sticks and Stones: Bullying and What Parents Should Know about the Duty of Care and Liability of Ontario schools”, June 16, 2014] our Criminal Code contains no section on ‘bullying’ per se, either. However, workplace bullies can be found guilty of committing a number of offenses listed under the Code including, criminal harassment [as per section 264 of the Criminal Code], uttering threats [as per section 246.1 of the Criminal Code], assault [as per section 265&266 of the Criminal Code] and sexual assault [as per section 271 of the Criminal Code]. Consequently, claims can be established for various torts such as harassment, assault and battery. According to the CSC, 45% of victims suffer from stress-related health issues, including anxiety, panic attacks and clinical depression, which can be grounds for suing an employer for intentional infliction of mental suffering. Finally, since bullies often attack the professional reputation and credibility of victims and impede their ability to perform their job, any good personal injury lawyer could also make a case for slander and defamation of character.

A victim who seeks out the advice of a qualified legal professional will discover there’s three ways they can pursue their negligent employers: statute, contract or tort.

Statute-wise, if [like in Pierre Lebrun’s case] the victim is being discriminated against on the basis of their disability or any of the 17 protected grounds of discrimination covered by the Ontario Human Rights Code, 1990, the employee can seek redress via the Ontario Human Rights Commission. Ontario workers are also free to petition under Bill 168. According to section 25 (2) (a) of the Act, an Ontario employer who is covered by the Act, has an obligation to “, provide information, instruction and supervision to protect the health and safety of the worker”. Under sections 25 (2) (h) and 27 (2) (c), supervisors are also obligated to “take every precaution reasonable in the circumstances for the protection of a worker “. Despite a handful of successful claims made under the Act [e.g. General Motors of Canada Ltd. v. Martin, [2009] Can LII 71654 (ON LRB)  or Universal Workers Union (Labourer’s Union of North America. Local 183) v. Teston Pipelines Ltd, [2011] CanLII 78812 (ON LRB)], Ontario courts have been reluctant to take on workplace bullying. But, that’s changing and what victims can’t achieve via statute, they can through contract or tort.

Second on the tort liability ‘checklist’ of Ontario employers is the “contractual duty of good faith”. At common law, there is recognition that employers have a contractual obligation to transact with workers in a reasonable and honest way. In Fidler v. Sun Life Assurance Co. of Canada, [2006] SCC 30, the Supreme Court of Canada found that there was an implied contractual duty of good faith that exists in the employment relationship between the contracting parties and “damages arising from its breach are recoverable”. Since were dealing with a breach of contract , the damages in question could be general, special and/or compensatory depending on the nature of the contract, the breach and the type of employment.

At contract, victims also have the possibility of making a claim for “constructive dismissal”. In Shah v. Xerox Canada Ltd. [2000] O.J. No. 849(C.A.), the Ontario Court of Appeal found that “…the court may find an employee has been constructively dismissed, without identifying a specific fundamental term of that has been breached, where the employer’s treatment of the employee makes continued employment intolerable”. Here as well, the repudiation of the employment relationship due to the employer’s “inefficient and unreasonable conduct” may give rise to general, special, compensatory and possibly punitive damages, if the court deems the misconduct a departure from the “ordinary standards of decent behaviour” test set out by the Supreme Court of Canada in Whiten v. Pilot Insurance Co.,[2002] SCC 18.

Targets of workplace bullying also have the possibility of filing a claim for negligence. To succeed, a plaintiff needs to prove four things: employer’s duty of care, the breached standard of care, damage resulting form the breach and that the damage was foreseeableIn Clark v. Canada (1994), 20 C.C.E.L. (2d) 172 (Fed. Ct.), the Federal Court sided with a female RCMP officer that sued the Agency for negligence and intentional infliction of nervous shock caused by the long-term harassment of her male colleagues. The Court found that the plaintiff proved all four grounds and awarded her $88, 000 in special damages for lost wages and $5,000 in general damages for nervous shock.

Finally, victims can sue for the intentional infliction of nervous shock or mental suffering. In order to succeed with such a claim, the plaintiff needs to demonstrate three elements: the outrageous conduct of the perpetrator, that the conduct was calculated to produce harm [intent] and that the conduct resulted in a visible and provable illness [actual injury]. The first high-profile workplace bullying case of this kind was Newfoundland Association of Public and Private Employees v. Newfoundland, 2003 aka the Kavanagh Decision. Kavanagh literally sent shockwaves across both the private and public sector. It became la cause célêbre of unions coast to coast and the example held up by leader in the business community or provincial agencies involved in occupational health and safety. In Kavanagh, the Supreme Court of Newfoundland ordered the Government of Newfoundland to pay $875,000$ in damages to a disabled government worker who terminated his employment after a campaign of harassment by his co-workers. Nine years later it was Ontario’s turn, only this time the defendant was the largest retailer in the world: Wal-Mart. In 2012, Meredith Boucher, [a veteran star employee of Wal-Mart for ten years] sued her former employer for “intentional infliction of emotional suffering” and was awarded $1.4 million in compensation. That amount was later downgraded to $410, 000: $200, 000 for constructive dismissal; $100, 000 for infliction of mental suffering and $10, 000 in punitive damages from the manager that had made her life at work a living hell.

Unfortunately, for every workplace bullying case resolved, there are a hundred more Meredith Bouchers waiting their turn to get justice. Bullying in the workplace is a vicious and dangerous practice that can have dire consequences for both workers and firms. It can have a detrimental effect on victims physically and psychologically and can cost organisations dearly. Left unchecked it can escalate into grisly scenarios like the one at OC Transpo back in 1999 and that kind of loss can’t be quantified.

If you’re a victim of workplace bullying, please don’t suffer in silence. Knowledge is power: inform yourself and take action. Look up your organisation’s workplace bullying policy or barring that its workplace harassment and violence policy. Document your mistreatment meticulously and often. Familiarise yourself with the complaints process and file a complaint with the appropriate agency at work. Most importantly, seek the help of an experienced personal injury lawyer who will be the champion you need, get the reparations you’re due and get you on track to rebuilding your life.