Court File and Parties

COURT FILE NO.: CV-20-00652969-0000 DATE: 2022-03-22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARIA INCOGNITO AND: SKYSERVICE BUSINESS AVIATION INC. and PETER BROMBY

BEFORE: VERMETTE J.

COUNSEL: Peter Waldmann, for the Plaintiff Trevor Lawson, for the Defendant Skyservice Business Aviation Inc. Nicole Jakobek, for the Defendant Peter Bromby

HEARD: December 9, 2021

Endorsement

[1] The Defendant Skyservice Business Aviation Inc. (“Skyservice”) moves under Rule 21.01(1)(b) of the Rules of Civil Procedure for an order striking out all allegations against Skyservice in the Plaintiff’s Fresh as Amended Statement of Claim with respect to vicarious liability for sexual harassment, without leave to amend, on the basis that such allegations do not disclose a reasonable cause of action against Skyservice.

The Plaintiff’s claims

[2] The Plaintiff issued her Statement of Claim on December 11, 2020. On April 27, 2021, she served a Fresh as Amended Statement of Claim.

[3] At all material times, the Plaintiff was an employee of Skyservice. Skyservice is a corporation incorporated under the laws of Ontario that provides private flight operations and flight coordination for corporations and individuals. Its registered head office is in Toronto. The Defendant Peter Bromby was the Vice-President of Sales at Skyservice throughout all the material time of the Plaintiff’s employment.

[4] The Plaintiff’s claims against Skyservice are for vicarious liability for sexual assault and vicarious liability for sexual harassment. As against Skyservice, she seeks: (a) damages in the amount of $500,000.00; (b) aggravated damages in the amount of $200,000.00; and (c) punitive damages in the amount of $150,000.00.

[5] The Plaintiff’s claims against Mr. Bromby are for sexual assault and sexual harassment. As against him, she seeks: (a) damages in the amount of $300,000.00; (b) aggravated damages in the amount of $100,000.00; and (c) punitive damages in the amount of $25,000.00.

[6] Given that: (a) Mr. Bromby has not brought a motion to strike, and (b) Skyservice does not seek to strike the allegations against it with respect to vicarious liability for sexual assault, my review of the Plaintiff’s pleading below is focused on her allegations against Skyservice with respect to vicarious liability for sexual harassment.

[7] The Plaintiff alleges the following in her Fresh as Amended Statement of Claim as against Skyservice:

Skyservice: Vicarious Liability for Sexual Harassment

14. According to the Ontario Human Rights Code (the “Code”), provided an action brought to the Ontario Superior Court of Justice is not commenced solely on an infringement of a right enshrined under the Code, a civil remedy can be brought within its jurisdiction.

15. Incognito was subjected to numerous instances of sexual intimidation which messaged to their employees the encouragement including outside the scope of employment of unwanted sexually charged activity and created a fertile atmosphere for sexual harassment. Examples of Incognito being subjected to sexual harassment outside the scope of employment include:

    a. Throughout her employment, Skyservice encouraged Incognito to expose herself by “show[ing] more cleavage and leg” and to wear thongs, tight pants and low-cut tops to show off her body at all times outside the scope of employment;

    b. In 1999, Incognito was in a motor vehicle with Line Staff on route to a colleague’s farewell party. While they were travelling in the vehicle, they aggressively asserted she expose sexual parts of her body to them;

    c. Joseph Kruger, owner of Kruger Papers and client of Skyservice, would remind Incognito that her “body is so sexy.” After complaining to senior management, they suggested “[she] should go out with him. He is rich”;

    d. In December of 2012, Skyservice held a Christmas party at Champs, a bowling alley in Milton, Ontario. Skyservice Colleagues and Line Staff were invited but attendance was not enforced nor mandatory. During the event, Incognito was subjected to multiple sexually explicit comments and remarks regarding her gender and body by Line Staff; and,

    e. As a result of the sexual assaults, sexual intimidation, and sexual harassment, Incognito underwent breast reduction surgery to lessen herself as a target. After Incognito underwent her breast reduction surgery in 2013, Paul Weeks, a Director at Skyservice, frequently told Incognito she had ruined her body by reducing the size of her breasts, calling it a “waste”.

    f. Skyservice knew and failed to provide her with a work environment free of gender-based discrimination and sexual harassment and failed to ensure that her complaints and grievances were properly investigated and resolved.

16. Skyservice discouraged and ignored complaints made by Incognito her [sic] about the sexual harassment she had been subjected to, and this was known to its employees and formed part of the corporate culture.

17. Skyservice did not have a Code of Conduct that condemned or prohibited any sexually tortious behaviour or discouraged same.

18. The acts described in paragraphs 15, 16, 23, 24, 25 and 26 above are contrary to the Code.

Damages

28. As a result of Skyservice’s vicarious liability for sexual assault, vicarious liability for sexual harassment, including those by Bromby, Incognito has suffered damages including, but not limited to:

    a. Incognito sustained permanent serious impairment of important mental, emotional and psychological harm. The injuries are accompanied by severe anxiety, depression, emotional trauma, insomnia, and diminished energy and will continue into the future;

    b. Incognito has sustained past loss of income and will suffer a loss of competitive advantage in her employment, a loss of income earning potential, and a diminution of income earning capacity into the future as a result of the injuries suffered from these aforementioned situations pleaded herein;

    c. Incognito will continue to be required to undergo medical and drug treatment. She has and continues to sustain mental and emotional suffering and the loss of enjoyment and quality of life.

[8] On May 14, 2021, counsel for Skyservice served a Demand for Particulars on the Plaintiff. Some of the particulars that were requested related to the Plaintiff’s claim of sexual harassment. The Plaintiff provided particulars on June 24, 2021.

The parties’ positions

[9] Skyservice argues that the tort of vicarious liability for sexual harassment is not a recognized tort in Ontario, and that this Court’s jurisdiction to deal with damages arising from sexual harassment is ousted by Ontario’s Human Rights Code, R.S.O. 1990, c. H.19 (“Code”). Skyservice relies on the decision of the Supreme Court of Canada in Seneca College v. Bhadauria, [1981] 2 S.C.R. 181 at 195 (“Bhadauria”) and numerous Ontario cases in which Bhadauria was applied in the context of claims of sexual harassment. Skyservice’s position is that it is plain and obvious that the Plaintiff’s claim of vicarious liability for sexual harassment discloses no civil cause of action and that, accordingly, it should be struck.

[10] The Plaintiff acknowledges that a violation of the Code cannot, in and of itself, be a cause of action. However, she submits that section 46.1 of the Code permits a claim for sexual harassment for additional damages in a civil court if another cause of action grounds the civil claim. Her position is that, in this case, sexual harassment should increase the amount of damages for the tort of sexual assault. The Plaintiff also argues that the authorities relied upon by Skyservice have been modified or overruled by the Court of Appeal in Merrifield v. Canada (Attorney General), 2019 ONCA 205 (“Merrifield”), where the Court of Appeal did not “foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts” (at para. 53). [1] In the Plaintiff’s view, the inability to sue for a tort of sexual harassment runs contrary to the “Me too” movement, and there is now a compelling policy rationale to recognize vicarious liability for sexual harassment as a tort in Ontario.

Analysis

A. Principles applicable on a motion to strike

[11] On a Rule 21.01(1)(b) motion, a pleading will only be struck out if, assuming the facts pleaded to be true, it is plain and obvious that it discloses no reasonable cause of action – that is, where the pleading has no reasonable prospect of success: Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618 at para. 18.

[12] The Court of Appeal set out the principles applicable to a motion to strike in McCreight v. Canada (Attorney General), 2013 ONCA 483 at para. 39:

• In the interests of efficiency and correct results, there is a need to weed out hopeless claims – this housekeeping dimension underlies rule 21.
• If the cause of action pleaded has been recognized, all of its essential elements must be pleaded.
• If the cause of action has not been recognized, this is not necessarily fatal. One must ask whether there is a reasonable prospect that the claim will succeed.
• The claim should not be struck merely because it is novel.
• Unless manifestly incapable of being proven, the facts pleaded are accepted as being true for the purposes of the motion.
• The pleading forms the basis of the motion; possible future facts that have not been pleaded may not supplement the pleading.
• No evidence is admissible on such a motion.
• The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies.
• A motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose, and different rules relating to evidence.

[13] While the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact, unsupported by material facts: Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 at para. 31.

[14] While a pleading may be struck, leave to amend should be denied only in the clearest of cases. The fact that the allegations are bald is not, in itself, a basis for refusing leave. It is only where it is clear that the plaintiff cannot allege further material facts that the plaintiff knows to be true to support the allegations that leave to amend will be refused. The fact that amendments may have previously been made is a relevant consideration. See Miguna v. Ontario (Attorney General) at para. 22, Tran v. University of Western Ontario, 2015 ONCA 295 at para. 27, and Horfil Holding Corp. v. Queens Walk Inc., 2019 ONSC 1381 at paras. 33-34.

B. Relevant provisions of the Code

[15] Section 7 of the Code deals with sexual harassment. Subsections 7(2) and (3) are relevant to the employment context. They provide as follows:

Harassment because of sex in workplaces

(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.

Sexual solicitation by a person in position to confer benefit, etc.

(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

[16] As a result of amendments made in 2006, the Code expressly allows a plaintiff to seek a civil remedy in court with respect to a breach of the Code, but only in connection with another wrong. Section 46.1 of the Code reads as follows:

Civil remedy

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

Same

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

[17] For the purpose of this motion, section 46.3 of the Code is also relevant as it refers to section 7, i.e. the provision of the Code that deals with sexual harassment. Section 46.3 states the following:

Acts of officers, etc.

46.3 (1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

Opinion re authority or acquiescence

(2) At the request of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization, the Tribunal in its decision shall make known whether or not, in its opinion, an act or thing done or omitted to be done by an officer, official, employee or agent was done or omitted to be done with or without the authority or acquiescence of the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization, and the opinion does not affect the application of subsection (1).

[18] By its terms, section 46.3 expressly excludes vicarious liability for sexual harassment by an officer or employee of a corporation and prevents findings of vicarious liability against an employer in respect of a claim of sexual harassment: see 772694 Ontario Limited v. Gurnsey, 2018 ONSC 5558 at paras. 36 and 43, and Allan Etherington v. National Hockey League, 2020 ONSC 5789 at paras. 36-39. As stated by the Divisional Court in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 at para. 32 (“Farris”):

Thus, under the Code, a corporation cannot be held vicarious liable for the acts of its employees, agents or officers when it comes to sexual harassment. Those complaints are to be brought against the individual who actually committed the harassment.

C. Tort of sexual harassment

[19] In Bhadauria, the Supreme Court of Canada held that the Code forecloses any civil action based directly upon a breach thereof and excludes any common law action based on an invocation of the public policy expressed in the Code: see Bhadauria at 195.

[20] In Honda Canada Inc. v. Keays, 2008 SCC 39 at para. 63, the Supreme Court referred to its decision in Bhadauria and stated that, in Bhadauria, “this Court clearly articulated that a plaintiff is precluded from pursuing a common law remedy when human rights legislation contains a comprehensive enforcement scheme for violations of its substantive terms”. The Supreme Court confirmed (at para. 64) that a breach of the Code does not constitute an actionable wrong. While the Court mentioned the amendments to the Code which allow a plaintiff to advance a breach of the Code as a cause of action in connection with another wrong, it noted that the amendments restrict monetary compensation to loss arising out of the infringement, including any injuries to dignity, feelings and self‑respect: see para. 63.

[21] In light of the principles set out in Bhadauria and the fact that the Code deals with sexual harassment, Ontario courts have consistently held that sexual harassment is not an independent tort that can support a cause of action: see, e.g., K.L. v. 1163957799 Quebec Inc., 2015 ONSC 2417 at paras. 23-27; Desjardins v. The Society of Obstetricians and Gynecologists of Canada, 2012 ONSC 7294 at paras. 47-49; Rivers v. Waterloo Regional Police Services Board, 2018 ONSC 4307 at paras. 47-57; and Chapman v. 3M Canada Inc..

D. Application to this case

[22] The Plaintiff’s claims against Skyservice in the Fresh as Amended Statement of Claim are expressly based on “vicarious liability for sexual assault” and “vicarious liability for sexual harassment”. The exact words “vicarious liability for sexual harassment” are used in the Fresh as Amended Statement of Claim in paragraphs 1 (setting out the relief sought) and 28 (setting out the damages suffered by the Plaintiff), and in a heading preceding the section of the pleading setting out the alleged facts in support of the Plaintiff’s claim of vicarious liability for sexual harassment.

[23] As stated above, there is no independent tort of sexual harassment in Ontario. There is no basis for coming to a different conclusion in this case. While it is true that, in its 2019 decision in Merrifield, the Court of Appeal did not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, the Court concluded in that case that the tort of harassment did not exist in Ontario, and it was not persuaded that the tort should be recognized. Further, and more importantly, the nature of the harassment in issue in Merrifield was not covered by the Code, and there is no discussion of the principles set out in Bhadauria in the Court of Appeal’s reasons. [2] In my view, contrary to the Plaintiff’s submissions, the Court of Appeal’s comments in Merrifield about the possible recognition of a tort of harassment in the future do not modify or overrule the principles set out by the Supreme Court of Canada in Bhadauria. Applying the principles set out in Bhadauria, by which I am bound, I find that the Plaintiff’s claim of vicarious liability for sexual harassment against Skyservice has no reasonable prospect of success.

[24] Section 46.1 of the Code does not assist the Plaintiff because, as stated above, section 46.3 provides that a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to sexual harassment. I note that there is no allegation in the Fresh as Amended Statement of Claim that the individuals responsible for the harassment were directing minds of Skyservice: see Farris at para. 33.

[25] In light of the foregoing, the Plaintiff’s claim of vicarious liability for sexual harassment as against Skyservice must be struck. Given that no such cause of action exists in law, leave to amend is not granted with respect to alleging the tort of sexual harassment or vicarious liability for infringements of section 7 of the Code.

[26] However, reading the Fresh as Amended Statement of Claim generously in favour of the Plaintiff, the facts pleaded in relation to the alleged sexual harassment could potentially support a claim for monetary compensation under section 46.1 of the Code in relation to the infringement of provisions of the Code that are not excluded by section 46.3: see Farris at para. 33 and Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 at para. 68. Accordingly, these reasons should not be interpreted as preventing the Plaintiff from making amendments to the Fresh as Amended Statement of Claim for monetary compensation under section 46.1 of the Code based on alleged infringements of provision(s) of the Code other than sections 5(2) and 7. [3]

Conclusion

[27] Skyservice’s motion to strike is granted. The Plaintiff’s claim of vicarious liability for sexual harassment as against Skyservice is struck, including: the words in paragraph 1 regarding vicarious liability for sexual harassment and the damages associated with the same; the subheading above paragraph 14; paragraphs 14-17; the references in paragraph 27 to prior paragraphs dealing with vicarious liability for sexual harassment; and the words in paragraph 28 and its subparagraphs regarding vicarious liability for sexual harassment and the damages associated with the same.

[28] Leave to amend is not granted with respect to alleging the tort of sexual harassment or vicarious liability for infringements of section 7 of the Code. However, the Plaintiff is not prevented from making amendments to the Fresh as Amended Statement of Claim for monetary compensation under section 46.1 of the Code based on alleged infringements of provision(s) of the Code other than sections 5(2) and 7.

[29] If costs cannot be agreed upon, Skyservice shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 14 days of the date of this decision. The Plaintiff shall deliver her responding submissions (with the same page limit) within 14 days of her receipt of Skyservice’s submissions.

Vermette J.

Date: March 22, 2022

Footnotes

[1] The Plaintiff also refers to Caplan v. Atas, 2021 ONSC 670 where the tort of internet harassment was recognized.

[2] The same observations apply to Caplan v. Atas, 2021 ONSC 670.

[3] Given that the Plaintiff’s claim of vicarious liability for sexual assault against Skyservice is not challenged, there is another wrong in the action in connection to which an infringement of the Code can be advanced under section 46.1 of the Code.