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No right to sue employer for sexual assault by co-worker: WSIAT

sexual assaultCan an employee sue her employer if she is sexually assaulted at work by a co-worker? In a decision by the Ontario Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), Decision No. 3096/17, 2018 ONWSIAT 1563 (CanLII), the answer was once again, “not if the employee is entitled to WSIB benefits.”

Facts

L.E.L., was an employee of 1079314 Ontario Inc., c.o.b. as Subway Restaurant (“Subway”). A. Patel (“Patel”) is the owner of Subway and an executive officer of the corporation. H. Gajjar (“Gajjar”) was L.E.L.’s supervisor during her employment at Subway.

L.E.L. sued Subway, Patel, and Gajjar in the Ontario Superior Court of Justice for damages, which she attributes to sexual harassment and sexual assaults against her by Gajjar. According to the Statement of Claim she filed in the Ontario Superior Court, L.E.L. is a person with a disability. The allegations include the following:

  • While working closing shifts with Mr. Gajjar, he provided her with alcohol on an unknown number of occasions.
  • Mr. Gajjar asked L.E.L. to accompany him to his home after work hours.
  • In the summer of 2012, while providing L.E.L. with transportation home in his vehicle, Gajjar grabbed her hand and placed it on his penis, outside of his trousers.
  • In February 2013, while working at the Subway, Gajjar took L.E.L. to a part of the restaurant that was not monitored by the security cameras and massaged her back and breasts, and attempted to kiss her.
  • Gajjar paid a financial incentive to L.E.L. to participate in sexual activity.

Gajjar was charged with both sexual assault and sexual exploitation of a person with a disability by a person in authority under the Criminal Code of Canada He pleaded guilty to a lesser charge.

The Statement of Claim alleged that L.E.L. suffered serious personal injuries and impairments as a result of the harassment and sexual assaults committed by Gajjar.

As against Subway and Patel, the Statement of Claim alleged that they were liable for Gajjar’s actions. Allegations of negligence against Subway and Patel included failure to have in place and enforce policies and procedures with respect to conduct of employees in the workplace and failure to provide a safe working environment for L.E.L.

For the purposes of the WSIAT application, counsel agreed that allegations in the Statement of Claim could be used for the purposes of adjudicating the application. Specifically, counsel stated that, as an agreed statement of facts, paragraphs 5, 6, 7, 8, 9, 10, and 11 of the Statement of Claim were accepted. Those paragraphs read as follows:

5. While working the closing shifts the Defendant, Gajjar, provided alcoholic beverages to the Plaintiff L.E.L. on an unknown number of occasions.

6. The Defendant also asked the Plaintiff L.E.L. if she wished to accompany him to his home after work hours.

7. In the summer months of 2012, while providing L.E.L. with transportation home, the Defendant, Gajjar, grabbed her hand and placed it on his penis, outside of his trousers.

8. On or about February 4, 2013, while L.E.L. and Gijjar [sic] were working at the Subway […], Gijjar [sic] called the Plaintiff to an area of Subway that was not monitored by security cameras. He began to massage her back and moved his hands to massage her breasts.

9. The assault was interrupted by a customer, whom L.E.L. served.

10. When the customer left, the Defendant, Gijjar [sic], coerced L.E.L. to a back hallway, grabbed her waist, began massaging her breasts and tried to kiss her.

11. The Defendant Gijjar [sic], also paid a financial incentive to the Plaintiff L.E.L. to participate in sexual activity.

At the WSIAT hearing, counsel for Subway conceded that the alleged sexual assault that took place in Gajjar’s vehicle or otherwise away from Subway’s premises did not occur “in the course of L.E.L.’s employment.”

Issue

The issue on the WSIAT hearing was whether L.E.L.’s right to sue Subway and Patel in the Superior Court was taken away, in whole or in part, by the Workplace Safety and Insurance Act, 1997, the “WSIA”. Section 26 applies to actions by workers against their own employers or executive officers of the employer.

There was no dispute regarding the following facts: Subway was a Schedule 1 employer at all relevant times; Patel was an executive officer of the employer at all relevant times; L.E.L. was a “worker” of Subway within the meaning of the WSIA; Gajjar was a “worker” of Subway within the meaning of the WSIA.

The main point of contention was whether L.E.L. sustained a personal injury by “accident” arising out of and in the course of employment that entitles her to claim benefits under the WSIA. If the answer was “yes”, then she was not allowed to not to sue Subway or Patel in the Superior Court.

Decision

In granting the employer’s application in part, WSIAT Vice Chair Rosemarie McCutcheon reasoned as follows:

[20] The key provision in this application is section 26 of the WSIA, which provides that entitlement to benefits under the insurance plan is in lieu of all rights of action that a worker 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 while in the employment of the employer.

[23] Section 2 of the WSIA contains an inclusive definition of “accident”:

“accident” includes,
(a) a wilful and intentional act, not being the act of the worker …
[24] In my view, the worker’s injuries clearly fall within the definition of accident: she was the victim of a wilful and intentional act by another worker in the workplace.

[25] This outcome is consistent with the interpretation adopted in the Tribunal’s case law. It is established in the Tribunal’s case law that a sexual assault against a worker in the course of employment is considered to be an “accident” under the WSIA. The definition of accident, contained in section 2, includes “a wilful and intentional act, not being the act of the worker.” The statutory definition of accident thereby makes it clear that injuries in the course of employment caused by the deliberate acts of others fall within the purview of the WSIA.

[26] Several decisions of this Tribunal have considered this issue. Decision No. 712/90 (June 26, 1992) is an early leading case. The plaintiff in that case brought an action for damages against various defendants in respect of a sexual assault that occurred while she was providing janitorial services. In considering the right to sue application, the Panel concluded that a sexual assault was an “accident” for the purposes of the Workers’ Compensation Act (the predecessor legislation contained an analogous definition of “accident”) …

[30] Counsel for the [plaintiff employee] argued that the activity was not work-related. He takes the position that the sexual assaults and harassment were not incidental to the employment in any way.

[31] The Tribunal’s case law demonstrates that workers who commit intentional physical or sexual assaults take themselves out of the course of employment; therefore, the right to sue them is not removed by the WSIA. However, the victims of such assaults at work are still entitled to claim benefits under the WSIA.

[32] For example, in Decision No. 286/96 (1996), 40 W.C.A.T.R. 122, the Panel found that the worker’s right to sue her Schedule 1 employer for a sexual assault in the course of employment was removed by the worker’s compensation legislation in effect at that time. The plaintiff’s right to sue the alleged assailant, who was also a co-worker, was not removed by the Act. The Panel held that the alleged assailant had taken himself out of the course of employment through the deliberate act of committing a sexual assault, but the right of action against the employer was removed.

Commentary

This blog has examined the issue of suing one’s employer for sexual assault and sexual harassment in a number of posts, including that titled Ontario Superior Court Says that You Cannot Sue for the Tort of Sexual Harassment.

Advancing claims for sexual harassment and sexual assault are demonstrably complicated. What I think will catch a lot of people by surprise is that one of those complications is the limitation of forums within which one can advance his or her case.

Takeaways for employees with labour pains

The takeaway for those who are survivors of sexual assault is that one must be cautious of the forum within which a case is advanced. As this case demonstrates, you may not be able to sue your employer. However, such analysis is complicated and it would be prudent to obtain experienced legal advice before making any final decisions.

Takeaways for employers with labour pains

If you are an employer that pays WSIB premiums, and you have been sued in civil court as a result of a sexual assault by one of your employees on another one of your employees, we should talk for two reasons. First, you have a serious problem that needs addressing. Second, you may be able to end the law suit by way of an application to the WSIAT.

Sean Bawden

Sean Bawden is a partner with the law firm of Kelly Santini LLP. He was called to the bar in 2008 and practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College. He is a trustee of the County of Carleton Law Association. He is also a four-time OSSC curling champion. His twitter handle is @SeanBawden.
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