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In the workforce, it is crucial to understand the foundations that make up a relationship between an employee and an employer. In layman’s terms, an employment relationship is essentially an agreement. The employee offers their labour and, the employer pays for that labour. In the article below, we examine how tort law can be considered in employment relationships, followed by a look at specific torts that may arise in employment. 

WHAT IS A TORT?

A tort is a wrong committed by one individual against another that results in some type of loss whether that be a monetary loss, loss of physical or mental health etc. The laws relating to torts in Canada coincide with the notion that we all owe our “neighbour” a duty to not inflict harm upon them, intentionally or otherwise. Torts are typically divided into one of two categories; intentional torts or unintentional torts. 

HOW TO ANALYZE IF A TORT IS UNINTENTIONAL OR INTENTIONAL

Intentional torts are those in which a person is meant to inflict harm or cause injury against another individual. While unintentional torts occur from careless or negligent behaviour that causes harm or injury to another individual. Unintentional torts, by law, are also referred to as negligence. Below, we examine the elements that must be established to consider a tort intentional and unintentional.

TYPES OF INTENTIONAL TORTS

INDUCING BREACH OF CONTRACT

The tort of inducing breach of contract exists when a third party persuades or encourages the breach of an existing contract between two other parties.

This specific tort requires proof of four elements below:

1.       The defendant had knowledge of a contract between the plaintiff and a third party;

2.       The defendant’s conduct was intended to cause the third party to breach the contract;

3.       The defendant’s conduct did cause the third party to breach the contract; and

4.       The plaintiff suffered damages as a result of the breach.

Examples where the tort of inducing breach of contract is present in an employment context include:

·       A new employer is aware that an employee is bound to the terms of an employment contract with an alternative employer, and  persuades the employee to breach their contract with their former employer (this can typically be done by bribing an employee with a higher salary, better job title, a bonus or other employee benefits);

·       Encouraging  an employer to fire an employee without reasonable notice; and

·        Inducing an employee to breach their fiduciary obligations which was discussed in our previous blog.

WHEN CAN AN EMPLOYER BE LIABLE FOR THE TORT OF INDUCING BREACH OF CONTRACT?

There are various scenarios when an employer can be held liable for the tort of inducing breach of contract, some examples include but are not limited to:

·       The former employer had a valid and enforceable contract with the employee;

·       The new employer knew of the existence of the contract;

·       The new employer intended to procure a breach of this contract; and

·       As a result of the breach, the former employer suffered damages

INTENTIONAL INFLICTION OF MENTAL SUFFERING

The tort of intentional infliction of mental suffering occurs when an individual intentionally or recklessly inflicts mental suffering on another person by behaving in a flagrant and outrageous way that causes a degree of emotional distress

This specific tort requires proof of three elements below:

1.       The defendant’s conduct was flagrant and outrageous;

2.       The defendant’s conduct was pre-planned to harm the plaintiff; and

3.       The defendant’s conduct caused the plaintiff to suffer a visible and provable harm.

 

WHEN MAY THE TORT OF INTENTIONAL INFLICTION OF MENTAL SUFFERING SUPPORT A CAUSE OF ACTION?

In any case of intentional infliction of mental suffering we suggest seeking legal counsel to understand your rights and entitlements, however in the below scenarios are generally known to be considered highly severe, especially if they are found to be common occurrences or ongoing.

·       Severe harassment or discrimination by an employer or colleague; 

·       Sexual harassment;

·       An employer refusing requests for an accommodation under the Human Rights Code; and

·       A hostile/poisoned work environment.

The harm does not have to be physical in nature. An example of exhibiting the tort of intentional infliction of mental suffering is exemplified below in the case of, Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520:

The employee (age 56) worked for Applied Consumer & Clinical Evaluations Inc for over 15 years. In October of 2010, she suddenly became completely deaf, acquiring a disability. Almost immediately after, the general manager and supervisor began a campaign of discriminatory behaviors against her inherently designed to force her resignation. In addition to publicly belittling, harassing, and isolating the employee, she was also denied any accommodations for her disability. It was observed that the employer took specific steps to increase the difficulties the employee was already facing as a result of their hearing loss. The court held that the cruel treatment and tormenting behavior was meant for the specific purpose to make their work environment intolerable. The employee initially was terminated and then sued the employer for wrongful dismissal. The plaintiff was granted a judgment in the amount of $113,782.79 plus $40,000 in costs.  

The plaintiff later, appealed the damages that were awarded and argued that they were too low given the conduct that she endured. The Ontario Court of Appeal allowed the appeal and increased the total damage award to $246,049.92.   

TYPES OF UNINTENTIONAL TORTS

Unintentional or negligent torts require the proof of three elements below:

1.       A legally recognized duty of care owed by one party to another not to engage in any careless negligent behavior that may cause harm;

2.       A failure on the part of the individual with a duty of care to meet an acceptable legal level of standard of care expected under the circumstances; and

3.       The individual alleging that they were injured by another individual’s actions must prove on a balance of probabilities that they in fact suffered some form of harm, loss, or injury.

In an employment relationship, the duty of care is a significant consideration when analyzing occurrences of unintentional torts. Employers and employees are in a position to cause harm to one another through their actions and therefore are obliged to act reasonably and professionally and abide by workplace policies and guidelines implemented to avoid harm experienced in the workplace. 

KEY TAKEAWAYS FOR EMPLOYEES AND EMPLOYERS

The purpose of tort laws are generally to regulate every-day life issues. In the employment context, we specified how the torts and the employment relationship correlate in the event a wrong is committed intentionally or unintentionally. Torts are used in an attempt to assign costs of harmful behaviour between an employee and employer contingent on the fact that it is established who is at fault. 

CONTACT US

Whether you are an employee or employer, if you have concerns relating to instances of intentional or unintentional harm or injury occurring at your place of work, we encourage you to contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to khayward@sultanlawyers.com.


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