On the facts in the Ashraf case, Shidan Ashraf launched a court action against his employer based on allegations that a toxic work environment was condoned by management. Ashraf alleged he suffered abuse, harassment and bullying resulting in a number of physical ailments along with stress, humiliation and distress.

In deciding an application of the employer to strike the Statement of Claim, Justice Mahoney for the Queen's Bench held that injuries suffered during the course of employment cannot be brought in a court action, by effect of section 21 of the Alberta Workers' Compensation Act. Workers' compensation legislation, from a policy perspective, represents a trade-off between the loss of an employee's right to sue an employer and the advantages of a government-administered insurance system which avoids the uncertainties of tort law.

The "essential nature" of Mr. Ashraf's claim was found to be a matter within the jurisdiction of the Workers' Compensation Board. Mr. Ashraf's claim fell under the definition of an "accident" in the Alberta Workers' Compensation Act and was therefore within its jurisdiction. Intentional acts, such as harassment, are tantamount to accidents in the language of the Workers' Compensation Act. If a claim is explicitly excluded from the Workers' Compensation Act, the claimant may properly seek a remedy in a civil court. Mr. Ashraf's claim for mental distress was not excluded from the Alberta workers' compensation scheme, though it would have been from the workers compensation schemes in the provinces of Manitoba, Nova Scotia and New Brunswick. A claimant might, in those jurisdictions, have been able to bring a claim for mental distress suffered as a result of workplace harassment in those jurisdictions.

Mr. Ashraf's appeal of this decision was dismissed.

What this means for employers

Workplace harassment issues are becoming increasingly significant from a workplace human resources management perspective. Some jurisdictions, such as Ontario, expressly address workplace harassment within occupational health and safety legislative requirements. There may also be human rights implications to workplace harassment. These developments, coupled with increasing jurisprudence on "stress" related or emotional injuries, makes it quite likely the issues raised in the Ashraf case will become increasingly common.

The Ashraf decision suggests that, unless an exception applies (which will depend on the jurisdiction), workplace injuries tied to harassment in the workplace will be covered by the insurance framework of workers' compensation legislation. This, by definition, removes such claims from the tort law jurisdiction of courts and into administrative tribunals that determine workplace compensation matters. This could present a bar to potentially unlimited tort claims for emotional or psychological harm associated with workplace harassment. On the other hand, an interesting question arises whether there could be concurrent jurisdiction for courts or human rights tribunals to award damages for mental distress on the same facts? Certainly there could be health and safety related claims or prosecutions in some jurisdictions over workplace harassment types of issues, concurrent with claims for injuries (under workers' compensation or tort laws as the case may be). The exact parameters remain to be developed in future cases, but there still remains a real possibility of multiple proceedings on the same facts, even if workers' compensation jurisdiction applies in relation to worker injuries.

Employers should take note of these possibilities and recognize that workplace harassment can become a serious legal issue. To address it proactively employers should identify the employment, human rights and health and safety dimensions of workplace harassment and develop policies and training accordingly. Procedures for investigating allegations of workplace harassment are a must. By being proactive employers can avoid the risk of claims that could result either in heightened insurance premiums or tort claims, or a variety of other claims – none of which are desirable outcomes.

Note: This is a reprint of an article by Michael Torrance of Norton Rose Fulbright Canada LLP.