Employee filed action against company vice president for sexual harassment and sexual assault, and against company for vicarious liability for the sexual harassment. Court confirmed that sexual harassment is not an independent tort in Ontario and an employer cannot be held vicariously liable for sexual harassment. A plaintiff may not seek a civil remedy in court for a breach of the Ontario Human Rights Code, unless it is sought in connection with another independent civil action. If, however, an employee makes a claim relating only to a breach of the Code, that claim must be made before Ontario’s Human Rights Tribunal.

In Incognito v. Skyservice Business Aviation Inc., 2022 ONSC 1795, an employee made a claim for damages against her employer’s Vice-President of Sales (VP) for sexual assault and sexual harassment, and against the employer for vicarious liability for sexual harassment. She asserted that the employer did not provide her with a safe work environment or have an appropriate code of conduct, and ignored her complaints about the VP’s behaviour.

The employer made a motion to strike the allegations against it in the Statement of Claim with respect to vicarious liability for sexual harassment, primarily on the basis that in Ontario the tort of vicarious liability for sexual harassment is not a recognized tort that can support a cause of action. The court agreed and granted the motion.

Employer’s Position

The employer argued:

• The tort of vicarious liability...

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