If you鈥檝e been the victim of workplace harassment, it can be difficult to feel you鈥檙e not alone 鈥� and even more difficult to know where to go with a complaint.聽
However, experts say there are a number of recourses for employees, regardless of where they are located and the size of the company they work for.
Workplace harassment legislation
The most important place to start when it comes to exercising your rights as an employee? Knowing which law applies, said Jon Pinkus, an employment lawyer and partner at Samfiru Tumarkin LLP in both Ontario and British Columbia.
鈥淢ost provinces have a specific piece of legislation that protects workers against workplace harassment,鈥� he said. 鈥淔or example, in Ontario, it鈥檚 the Occupational Health and Safety Act. In B.C., it鈥檚 the Workers Compensation Act.鈥�
However, federally regulated industries such as airlines, banks and most Crown corporations may instead fall under the Canada Labour Code.聽
From these laws, employees can glean the definition of harassment as it applies to their jurisdiction.聽
鈥淲hat鈥檚 important for employees to note is that this doesn鈥檛 include performance management that may be uncomfortable, or even severe,鈥� added Pinkus. This means that where an employer is using reasonable methods to help an employee improve 鈥� like putting together a performance improvement plan for a worker who is consistently underperforming 鈥� a claim for harassment may not be viable.
鈥淎 lot of the debate about whether something is harassment focuses on this point,鈥� he said.
Preparing to bring a complaint
Regardless, if someone feels they are a victim of harassment at work, Pinkus emphasized the importance of recording the behaviour from the beginning 鈥� something Bea Bruske, president of the Canadian Labour Congress, echoed.聽
Harassment 鈥渄oesn't usually just start with one incident or one bad joke, or somebody doing something specific to you one time,鈥� she said. 鈥淚t's often over a longer period of time that these things escalate, so it鈥檚 important to document this escalation as proof of the larger issue.鈥�
Pinkus also noted that employees should ensure that when they record evidence, they do so in writing (or another medium, like photos, video or audio) by flagging the issue to their manager or human resources department over email as soon as it happens.
鈥淓mployees also shouldn鈥檛 be afraid to record (audio of) an incident if they can,鈥� he said, 鈥渂ecause in Canada, recording private conversations is legal as long as one of the parties consents 鈥� which in this situation, could be the employee.鈥�
Without evidence like this, 鈥淔or all legal intents and purposes, the harassment doesn鈥檛 exist,鈥� added Pinkus.聽
Legal recourses
Though there are a myriad of options for employees to enforce their rights against workplace harassment in Canada, Bruske said employees should start by trying to resolve the issue in-house 鈥� whether that be by bringing the issue up with the harasser themselves, or turning to a manager or human resources department to work out a solution.
鈥淭he overarching thing to keep in mind is that it鈥檚 an employer鈥檚 obligation to actually deal with harassment and violence at work and to keep (their employees) safe,鈥� she said. This includes ensuring the proper policies, protocols and services in place for harassment prevention and response, as well as support mechanisms for employees who bring harassment claims in the first place.
鈥淭he point is that they should be creating a culture where workers are comfortable reporting these incidents,鈥� said Bruske, 鈥渂ecause not all workers are going to feel comfortable doing so,鈥� particularly if they fear reprisal.
For unionized workers especially, Bruske emphasized the importance of first turning to the union鈥檚 workplace safety and health committee, then filing one鈥檚 grievance under their collective agreement 鈥� which, in many provinces, is a mandated process.
Where internal resolution mechanisms may not be possible 鈥� for instance, if one works for a small business where the instigator is the owner or manager themselves 鈥� Pinkus said employees have three main legal recourses: bringing a claim to the province鈥檚 labour-related ministry or commission, opening a case at the human rights tribunal, or trying their luck with litigation where they feel they have no choice but to resign from their position.
However, to bring a claim to a human rights tribunal, an employee must be able to show they were discriminated against based on 鈥渆numerated grounds,鈥� which are specific categories of identity that employers cannot discriminate against such as race, gender identity or sexuality.
This can differ across Canada according to each province or territory鈥檚 human rights code, said Pinkus. For example, British Columbia protects political affiliation as an enumerated ground, but Ontario does not.
鈥淭his can differ across Canada,鈥� said Pinkus. 鈥淔or example, B.C. has political affiliation as a protected ground, but Ontario doesn鈥檛.鈥�
Both ministry involvement and human rights tribunal rulings can order changes to a workplace in order to resolve the matter 鈥� though compensation is less likely to be awarded to employees by the former.聽
Finally, though employees can try to claim they were the victims of constructive dismissal 鈥� where an employee alleges their employer created such a hostile work environment that they had to resign 鈥� such cases are extremely hard to win.
鈥淧roving that a work environment is so toxic or so poisoned that you basically had no choice but to leave is a very high bar to meet,鈥� he said, 鈥渨hich is why I generally don鈥檛 recommend (constructive dismissal claims) unless it鈥檚 a very clear case.鈥�
Keeping a good paper trail of evidence for employees wishing to bring such claims is especially important, as plaintiffs must generally prove their managers were aware of the harassment 鈥� and allowed it to happen, regardless 鈥� to be successful in court.
Making an ultimate decision
Ultimately, though no one case is the same, Pinkus emphasized the importance of employees knowing that they should not take what their employers tell them 鈥渁t face value.鈥�
鈥淭hey might not tell you they owe your wages, severance or a safe work environment,鈥� he said. 鈥淩emember that employers have different interests than you, which might mean you have to navigate some of these things on your own.鈥�
Further, Bruske noted that workers should know that anti-workplace harassment laws also apply to third parties 鈥� not just employers or colleagues.
鈥淭he employer still has the obligation to keep employees safe from harassment by customers or patrons,鈥� she said. 鈥淚t can start with something as simple as putting up notices that harassment will not be tolerated, or letting go of a strict attitude of, 'the customer is always right.鈥欌��
鈥淏ut what鈥檚 most important is that employees start reporting 鈥� because if it鈥檚 not reported, that鈥檒l usually lead to escalation,鈥� she said, 鈥渁nd you have the right to feel safe and supported where you work.鈥�
鈥� Pascale Malenfant is a law student and freelance writer based in Montreal.聽
This report by The Canadian Press was first published March 29, 2024.
Pascale Malenfant, The Canadian Press
