CITATION: K.L. v. 1163957799 Quebec Inc., 2015 ONSC 2417
COURT FILE NO.: 14-61896
DATE: 20150414
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: K.L., Plaintiff
AND:
1163957799 Quebec Inc. c.o.b. as Calypso Water Park Inc. and Calypso Theme Waterpark and Curtis Strudwick, Defendants
BEFORE: Justice Patrick Smith
COUNSEL: Cheryl Letourneau, Counsel, for the Plaintiff (Responding Party)
Lawrence Greenspon, Counsel, for the Defendant Calypso (Moving Party)
Curtis Strudwick, self-represented
HEARD: March 5, 2015
ENDORSEMENT
[1] The plaintiff, K.L. (“K.L.”), alleges in her Statement of Claim that she was sexually assaulted by Curtis Strudwick. The defendants are 11663957799 Quebec Inc. carrying on business as Calypso Park Inc. and Calyspo Theme Park (“Calyspo”) and Curtis Strudwick (“Strudwick”).
[2] In her Statement of Claim K.L. claims damages against the defendants for sexual harassment, sexual assault, assault, battery, false imprisonment and intentional and/or negligent infliction of mental suffering.
[3] The defendant Calypso Park Inc. and Calypso Theme Park (“Calypso”) bring this motion for an order striking out the plaintiff’s pleadings on the ground that they disclose no reasonable cause of action and for an order dismissing the action against Calypso.
Factual Background
[4] The plaintiff’s Statement of Claim alleges the following facts:
In the summer of 2013, Strudwick and K.L. both worked for Calypso in the maintenance department.
Strudwick was K.L.’s supervisor. At the time, K.L. was 19 years old and Strudwick was 40 years old.
Strudwick has a prior criminal record for domestic assault stemming from a conviction dated February 2010.
Throughout the summer of 2013, K.L. alleges that Strudwick made sexual advances towards her, that she rejected all of these advances, and that at one point Strudwick threatened that he might reduce her shifts if she told anyone about his sexual advances.
On September 2, 2013, K.L. attended an end-of-season Calypso staff party on Calypso’s premises. Calypso provided food and drink, and the attendees were free to use the facilities at the park and to bring alcohol into the park for the purposes of the party.
K.L. alleges that, during the party, Strudwick made sexual advances towards her and repeatedly asked her if she was going to have sex with him, to which she repeatedly answered no.
K.L. states that at around 8:00 p.m., both she and Strudwick were swimming together in a swimming pool located on the Calypso property. K.L. alleges that it was then that Strudwick sexually assaulted her by having sexual intercourse with her without her consent. K.L. states that she repeatedly told Strudwick to stop and tried to physically fight him off; however, she was unsuccessful.
K.L. alleges that, following this assault Strudwick continued to harass her and demanded that she drive him home. She states that he entered her car without her consent, instructed her to drive to the west end of Ottawa and throughout the drive sexually assaulted her by putting his hands down her pants and under her shirt. Despite repeated demands that he stop, K.L. alleges that Strudwick became increasingly violent and aggressive. However, he eventually asked her to pull over and exited the car whereupon she was able to drive away.
K.L. immediately contacted the police and attended at a hospital where she was examined and assessed by a doctor.
Strudwick was subsequently charged with two counts of sexual assault contrary to s. 271 of the Criminal Code. On April 24, 2014, he entered a plea of guilty to one count of forcible confinement contrary to s. 279(2) of the Criminal Code.
[5] K.L. alleges the damages that she sustained arose out of and in the course of her employment and that Calypso is vicariously liable for Strudwick’s actions as well as liable for its own negligence.
[6] In paragraph 22 of the Statement of Claim K.L. sets out the following facts in support of her claims against Calypso:
a. It allowed for an unstructured and supervised staff party on its premises where alcohol was permitted to be consumed by the staff;
b. It created and/or enhanced the risk that assault, sexual assault and battery would occur in the workplace by permitting alcohol consumption at an unsupervised staff party;
c. It failed to instruct, properly or at all, its employees, servants and agents, or to provide information relating to sexual harassment and sexual assault in the workplace;
d. It failed to train, properly or at all, its employees, servants and agents, or to provide information relating to proper conduct in the workplace;
e. It hired an employee who had a violent history and a prior criminal record for domestic assault;
f. It hired an employee who had a violent history and a criminal record for domestic assault and placed him in a supervisory role over vulnerable employees;
g. It failed to supervise, properly or at all, its employees, when it knew or ought to have known that such employees, servants and agents were not qualified or competent to be assigned supervisory duties;
h. It failed to implement a screening process for employees to ensure that it did not hire individuals with criminal records and/or promote them to supervisory roles;
i. It failed to implement a screening process for employees to ensure that it did not hire individuals with criminal records to employ in the vulnerable sector;
j. It failed to supervise, properly or at all its employees at staff functions, when it knew or ought to have known that such employees, servants and agents were not qualified or competent to act appropriately in a work place setting;
k. It supplied alcohol to its employees in the absence of any control or supervision;
l. It allowed staff the full and unsupervised access to the park;
m. In all the circumstances, it created and/or enhanced the risk that vulnerable employees could be subject to assault, sexual assault and battery in the workplace.
[7] Calypso has not yet filed a statement of defence pending resolution of this motion.
The Law and Applicable Rules of Practice
[8] Rule 21.01(1)(b) of the Rules of Civil Procedure provides:
21.01(1) A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
[9] On a Rule 21.01(1)(b) motion, the parties may not introduce evidence (Rule 21.01(2)(b)).
[10] The test for striking out a claim on the ground that it does not disclose a reasonable cause of action is well settled. A claim will only be struck if it is plain and obvious that the pleading discloses no reasonable cause of action (Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15; Hunt v. T & N plc, 1990 90 (SCC), [1990] 2 S.C.R. 959, at p. 980).
[11] The Supreme Court succinctly stated the rule in Imperial Tobacco at para. 17: “[w]here a reasonable prospect of success exists, the matter should be allowed to proceed to trial.”
[12] The standard for demonstrating that a cause of action exists is very low (Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2012 ONSC 6083, 113 O.R. (3d) 264, at para. 57). Correlatively, the threshold to be met by the moving party under this rule is very high (Amato v. Welsh, 2013 ONCA 258, 362 D.L.R. (4th) 38, at para. 33).
[13] The court must accept the facts pleaded as true unless they are patently ridiculous or incapable of proof (Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.), at para. 11; Operation Dismantle Inc. v. R., 1985 74 (SCC), [1985] 1 S.C.R. 441, at para. 79).
[14] In addition, the Statement of Claim should be read generously to accommodate drafting deficiencies (Biladeau v. Ontario (Attorney General), 2014 ONCA 848, [2014] O.J. No. 5679, at para. 15).
[15] Nevertheless, a party must plead the material facts on which it bases its claim or defence. As the Supreme Court stated in Imperial Tobacco at para. 22:
It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted.
[16] Pleadings should be struck out without leave to amend only in the clearest of cases, especially if the deficiencies in pleadings can be fixed by amendment and there is no prejudice to the responding party in granting leave to amend (Adelaide Capital Corp. v. Toronto Dominion Bank, 2007 ONCA 456, [2007] O.J. No. 2445, at para. 6).
[17] Rule 25.11 of the Rules of Civil Procedure provides:
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
[18] In The Law of Civil Procedure in Ontario, 2nd edition (Markham, Ontario: LexisNexis Canada, 2014), the authors Perell and Morden state: “[a] claim may be found to be frivolous, vexatious or an abuse of process when it asserts untenable pleas, contains insufficient material facts to support the allegations made, or is made for an extraneous or collateral purpose” (at 425) (emphasis added).
[19] Rule 25.06(1) requires that every pleading “contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.
[20] Rule 25.06(2) provides that “conclusions of law may be pleaded only if the material facts supporting them are pleaded.”
The Issues to be Addressed
[21] This motion raises the following issues:
Is the tort of sexual harassment a recognized cause of action in the Province of Ontario?
Does the plaintiff’s Statement of Claim disclose a reasonable cause of action in vicarious liability against the Calypso?
Does the plaintiff’s Statement of Claim disclose a reasonable cause of action in negligence against Calypso?
Analysis
Is the tort of sexual harassment a cause of action?
[22] The plaintiff’s claims for damages against Calypso include a claim with respect to the tort of sexual harassment (para. 21 of the Statement of Claim).
[23] The defendant argues that the tort of vicarious liability for sexual harassment is not a recognized tort in the province of Ontario, relying on the decision in Bent v. Olympia Tile, 2008 51926 (Ont. Sup. Ct.).
[24] I agree. Sexual harassment is not an independent tort recognized in Ontario and hence cannot support a cause of action. 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 (the Code).
[25] In Seneca College of Applied Arts & Technology v. Bhaduria, 1981 29 (SCC), [1981] 2 S.C.R. 181 [Bhaduria], the Supreme Court of Canada held that the Ontario Human Rights Code, R.S.O. 1980, c. 340, not only forecloses “any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code” (at para 195). The Supreme Court thus rejected a common law cause of action for discrimination based on ethnic origin.
[26] The application of Bhaduria to a claim for sexual harassment and discrimination arose in Chapman v. 3M Canada Inc., 1995 7128 (Ont. Sup. Ct.), aff'd 1997 1942 (Ont. C.A.) [Chapman]. The motions judge held that, despite the removal of the privative clause from Ontario’s Code and the advent of the Charter, Bhaduria continued to be binding. Thus, the plaintiff’s claim for damages as a result of sexual harassment and discrimination on the basis of gender/sex was dismissed for failing to disclose a civil cause of action as these matters come under the exclusive jurisdiction of the Code. (See also, Veri v. Mill Creek Motor Freight LP, 2009 35723 (Ont. Sup. Ct.) at paras. 6-9, and Desjardins v. Society of Obstetricians and Gynecologists of Canada, 2012 ONSC 7294, 2012 CarswellOnt 16528, at paras. 47-49.)
[27] It is my finding that there being no recognized cause of action for the tort of sexual harassment in Ontario an order will issue striking this aspect of the plaintiff’s Statement of Claim.
Does the plaintiff’s Statement of Claim disclose a reasonable cause of action in vicarious liability against Calypso?
[28] Calypso argues that the law of vicarious liability for sexual assault is well settled, and that, based on the facts as pleaded, the plaintiff’s case does not meet the threshold established by case law. Specifically, Calypso submits that the plaintiff’s claim does not meet the test set out in Bazley v. Curry, 1999 692 (SCC), [1999] 2 S.C.R. 534 [Bazley], which establishes the test for employer vicarious liability for the acts of an employee.
[29] In Bazley, Justice McLachlin (as she then was) set out a two-stage analytical framework. The first stage requires courts to determine if factually similar precedents establish, unambiguously, whether vicarious liability should be imposed or not.
The First Stage of the Bazley Analysis
[30] Calypso submits that the current leading precedents are unambiguous and hold that vicarious liability should not apply in a fact situation analogous to the one alleged by the plaintiff, citing Jacobi v. Griffiths, 1999 693 (SCC), [1999] 2 S.C.R. 570 [Jacobi], and Robertson v. Manitoba Keewatinowi Okimakanak Inc. et al., 2011 MBCA 4, 262 Man. R. (2d) 126 [Robertson], in support of this position.
[31] In my view, Jacobi does not provides much assistance, as it is factually distinguishable from the case at bar.
[32] The fact situation in Jacobi related to sexual assaults committed by an employee of the Boys and Girls Club of Vernon against minor children who participated in the club’s activities. The sexual assaults took place away from the club and outside working hours, apart from one incident in a club owned van.
[33] The majority decision of the Supreme Court focused on factors relevant to an employee sexually abusing a client who is a minor child – factors which are not relevant here given that the incidents are alleged to have occurred between adult co-workers at their place of employment during a work sponsored function. In Jacobi, the fact that the sexual assaults did not occur at club sponsored activities or, generally, on-site were cited as important factors in the majority’s decision not to impose vicarious liability (at paras. 40 and 80).
[34] The facts in Robertson are closer to the facts in this case. Nevertheless, Robertson is also distinguishable.
[35] In Robertson, the plaintiff and individual defendant were both employees of MKO. The defendant was MKO’s executive director; the plaintiff was his executive assistant. The plaintiff alleged that, while at work, she and the defendant made plans to celebrate her birthday. After work, they went out to a restaurant, with the defendant’s partner, and then all three returned to the defendant’s residence, where the plaintiff alleged she was sexually assaulted. MKO investigated the incident and subsequently fired the defendant. The plaintiff sued both the defendant and MKO.
[36] The court held that the fact that the alleged assaults took place outside of the workplace was an important factor in the Court’s decision to uphold the motion judge’s decision to strike the plaintiff’s claim of vicarious liability as disclosing no reasonable cause of action (at para. 48).
[37] The facts in this case are significantly different. I accept as true the facts pleaded that the assault took place during an unsupervised work function, on workplace property where the employer was either supplying or permitting the consumption of alcohol. These facts distinguish this case from Robertson.
[38] Regarding the first stage in the Bazley analysis, the plaintiff submits that the decision of this Court in K.T. v. Vranich, 2011 ONSC 683, [2011] O.J. No. 361 [Vranich], and Pawlett v. Dominion Protection Services Ltd., 2007 ABQB 415, 424 A.R. 107 [Pawlett], reversed on other grounds in 2008 ABCA 369, are precedents unambiguously establishing that vicarious liability should apply in this case.
[39] In my view, Vranich is distinguishable on its facts. In Vranich, the manager of a bar, Elixir, sexually assaulted a server. In the analysis of whether Elixir could be held vicariously responsible for this unauthorized act, Justice Whitten stated as follows, at paras. 84-86:
It has already been determined that Vranich, as the manager of Elixir, wielded considerable economic power over K.T. She like a lot of young people in university had an economic need. Despite her discomfort as to the lingerie theme night, she went along with what the bar, a.k.a. Vranich, prescribed as to her “uniform.” The serving of alcoholic beverages, although not improper in itself, can lead to situations in which patrons or consuming employees/managers act in an uninhibited fashion.
The events of July 20th, 2006 took place after hours; namely after 2:00 a.m., which made for at least a six hour shift, at the end of which a young female bartender could be fatigued. It is not a situation she can extricate herself easily from. The party was permitted and in a way orchestrated by the de facto boss. Vranich permitted the exodus to the fire escape and then as the boss, ordered the rest of the revellers back into the bar, so that he could be alone with K.T. This was a situation created by Vranich using his inherent authority as manager. The rest of the staff is subject to his whims. He says “leave the landing area.” They leave.
There is a definite link between Vranich operating Elixir and his ability to dominate K.T. If he was, as she was, a mere serving employee, he would not have the control he had over that situation. In criminal law, this situation would be characterized as a breach of trust. From a policy point of view, we would not want a person with economic power acting in a fashion detrimental to our young citizens, trying to pay their own way.
[40] Much of Justice Whitten’s analysis focused on Vranich as the operating mind of Elixir and, on this basis, Vranich’s actions could be imputed to Elixir, and the case for vicarious liability established. This conclusion is clear from Justice Whitten’s comment at para. 87:
Given the de facto identification of Vranich as the working face/operating mind of Elixir and the circumstances that he took advantage of, it is not difficult to find vicarious liability on the part of Elixir (1389715 Ontario Inc.) for the actions of Denis Vranich.
[41] The degree of the connection between the individual employee who committed the wrongful acts and the employer (they were essentially one and the same in Vranich) does not exist in the present case and for that reason the case is distinguishable.
[42] In Pawlett, an employee was sexually harassed and then sexually assaulted by her direct supervisor. Justice McDonald found the employer vicariously liable based on the following facts, (at para. 77):
The defendant was employed by Dominion to manage the company and to supervise inter alia the plaintiff.
The defendant was the plaintiff’s direct supervisor.
The plaintiff was not advised that there was anyone else at Dominion who, in turn, supervised the defendant. In fact the plaintiff had been led to believe that the defendant was in charge of the company.
The nature of the defendant’s employment created a situation wherein he and the plaintiff were often left alone to work together when no one else was present.
Dominion had no policy in place with respect to sexual harassment and the Plaintiff was not advised that any policy existed.
[43] The key facts that distinguish Pawlett from the ordinary supervisor-employee relationship that exists in any workplace are: the supervisor and employee often worked alone together; the employee was lead to believe that the supervisor was in charge of the company and had no supervisor to whom she could report; and there was no policy in place with respect to sexual harassment.
[44] Apart from the K.L.’s allegation that Calypso did not properly train its employees regarding sexual harassment or have proper policies in place, the facts in Pawlett are not sufficiently similar to the present case to stand as an unambiguous precedent, as required by Bazley. In particular, I find that the fact that the employee in Pawlett was lead to believe that she could not report the supervisor’s inappropriate behavior to anyone was key to the finding that vicarious liability should apply.
The Second Stage of the Bazley Analysis
[45] In cases where precedent is inconclusive, courts must continue to the second stage of the analysis, which requires consideration of the broader policy rationales behind strict liability. At para. 27, the Court in Bazley outlined the essential question to ask at this stage as follows:
Underlying the cases holding employers vicariously liable for the unauthorized acts of employees is the idea that employers may justly be held liable where the act falls within the ambit of the risk that the employer's enterprise creates or exacerbates. Similarly, the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence. [emphasis added]
[46] At paragraph 40, the Court continued:
The enterprise and employment must not only provide the locale or the bare opportunity for the employee to commit his or her wrong, it must materially enhance the risk, in the sense of significantly contributing to it, before it is fair to hold the employer vicariously liable. Of course, opportunity to commit a tort can be "mere" or significant. Consequently, the emphasis must be on the strength of the causal link between the opportunity and the wrongful act, and not blanket catch-phrases. When the opportunity is nothing more than a but-for predicate, it provides no anchor for liability. When it plays a more specific role — for example, as permitting a peculiarly custody-based tort like embezzlement or child abuse — the opportunity provided by the employment situation becomes much more salient.
[47] For the second stage of the analysis, Justice McLachlin set out the following guiding principles at para. 41:
(1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of "scope of employment" and "mode of conduct."
(2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.
(3) In determining the sufficiency of the connection between the employer's creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:
(a) the opportunity that the enterprise afforded the employee to abuse his or her power;
(b) the extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee);
(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise;
(d) the extent of power conferred on the employee in relation to the victim;
(e) the vulnerability of potential victims to wrongful exercise of the employee's power. [emphasis added]
[48] Calypso argues that, even if the precedents are ambiguous, the policy rationales behind imposing strict liability point against imposing vicarious liability in this case. In particular, Calypso argues that allowing staff to use the facilities at the park did not materially increase the risk of one employee sexually assaulting another. Furthermore, it submits that there are no material facts showing that:
Strudwick exercised any power over the plaintiff beyond what is required in a normal supervisor-employee relationship;
The plaintiff was vulnerable;
The sexual act and assault furthered the aims of the employer; or
There was any inherent intimacy in the employment relationship between Strudwick and K.L..
[49] In terms of the second stage of the Bazley analysis, the plaintiff argues that Bazley involved an employee’s sexual abuse of a client, and not sexual abuse between co-workers. Because the case is factually different from the case at bar, the plaintiff argues that the defendant’s policy argument based on the Bazley factors must fail.
[50] I agree that the factors set out in Bazley, which are not meant to be exhaustive, do not have much application here.
[51] The essential question in the case before the court is whether Calypso materially increased the risk that the unauthorized acts of sexual assault and/or assault would occur.
[52] First, I note that a staff party is very much connected to the employer. Employers authorize and hold staff parties to thank and reward employees. This in turn generates goodwill towards the employer and, presumably, creates a more loyal and dedicated workforce. The employer thus has a direct interest in and derives a benefit from hosting a staff party.
[53] In throwing a staff party in the manner it did, it is arguable that Calypso materially enhanced the risk to employees such as K.L.. Calypso hosted a staff party at a large waterpark with extensive grounds, where supervision would be inherently difficult if not impossible and where individuals such as K.L. could easily become isolated and vulnerable.
[54] Calypso also permitted alcohol to be consumed on the premises. The hiring of a bartender to control consumption would have reduced the foreseeable risk that partygoers could become inebriated and that incidents such as the one alleged would occur.
[55] The Supreme Court stated in Jacobi at para. 44:
Canadian courts have in fact examined a variety of circumstances in which it has been sought to make employers liable for the sexual assaults committed by employees. It is fair to say that these cases demonstrate a strong reluctance to impose no-fault liability for such deeply personal and abhorrent behavior on the part of an employee.
[56] While it may be true that the plaintiff will face obstacles in proving her claim, I do not think that, at this point, it is plain and obvious that the claim has no reasonable prospect of success.
[57] I would therefore dismiss Calypso’s motion to strike the plaintiff’s pleadings and claim based upon Calypso’s vicarious liability.
Does the plaintiff’s Statement of Claim disclose a reasonable cause of action in negligence against Calypso?
[58] Calypso argues that the plaintiff fails to plead the necessary material facts in support of her claim of negligence against Calypso. Specifically, Calypso submits that there are no facts pleaded that Calypso owed the plaintiff a duty of care or that sexual assault or assault was foreseeable.
[59] The defendant argued that the plaintiff did not plead that: Calypso was aware of Strudwick’s prior conviction; K.L. brought the alleged sexual advances to Calypso’s attention; or prior similar complaints were made by other employees against Strudwick. In addition, Calypso submits there is no factual basis provided indicating that employee training, instruction or supervision in the workplace would have any effect on sexual harassment or sexual assault taking place outside of working hours during a staff party. Lastly, the defendant states that there is no pleading that asserts that alcohol played any part in the sexual harassment and/or sexual assault of the plaintiff.
[60] The plaintiff submits that the pleadings disclose a reasonable cause of action against Calypso in negligence, and that she has pleaded the necessary material facts in relation to this claim.
[61] With respect to the duty of care, the plaintiff submits that an employer owes an employee a duty of care to provide a safe work environment for its employees (John v. Flynn (2001), 2001 2985 (ON CA), 54 O.R. (3d) 774 (C.A.) at para. 26), specifically one that is free from sexual harassment (Re PIPSC and CEP Local 3011 (Haniff), 2013 ONSC 2725, (Div. Ct.), at para. 26). In addition, the plaintiff states that an employer as occupier of the premises owes a duty of care to persons entering the premises to ensure that such persons are reasonably safe while on the premises (Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 3).
[62] The plaintiff also submits that she has pleaded facts supporting the requirement that the sexual assault and assault were reasonably foreseeable. Because Strudwick had a history of violence against women, the plaintiff submits that it was reasonably foreseeable that he would continue to commit acts of violence against women, including sexual assault. The plaintiff argues that Strudwick’s personal history and supervisory role in relation to K.L. meant that the actions of Strudwick were reasonably foreseeable.
[63] I agree with the plaintiff that a duty of care in this case may be grounded in an employer’s duty to provide a reasonably safe work environment for its employees.
Analysis
[64] With respect to the issue of reasonable foreseeability, I agree with the defendant that it would have been preferable for the plaintiff to specifically plead that Calypso knew or ought to have known about Strudwick’s criminal conviction. However, reading the pleadings generously, I find that this point is made clearly enough by implication. The plaintiff states that Calypso should have had screening processes in place (at para. 22)—this strongly implies that the plaintiff’s position is that Calypso ought to have known about Strudwick’s criminal conviction.
[65] If the plaintiff succeeds in proving at trial that Calypso knew or ought to have known about Strudwick’s conviction, then this fact, coupled with the decision to hold an unsupervised staff party, after hours with alcohol at a large waterpark, could potentially ground a claim that the assault or sexual assault was reasonably foreseeable.
[66] It is not plain and obvious to me that there is no reasonable prospect that the plaintiff will prove that the defendant was negligent and hence legally responsible for the injuries and damages sustained by the plaintiff.
DISPOSITION
[67] The defendant’s motion is therefore dismissed save and except for the plaintiff’s claims with respect to vicarious liability for sexual harassment, which are ordered struck.
[68] In the event that the parties are unable to resolve the issue of costs they may file written submissions within 30 days. Submissions are not to exceed five (5) pages in length.
Patrick Smith J.
Date: April 14, 2015