Harassed at Work for 1.5 Years in Ontario: What the Law Gives You When It Is Not About a Protected Ground

Eighteen months of this changes what the question even is. You are no longer asking whether the conduct is acceptable. You are asking whether the law has a machine that will do anything about it, and whether you broke that machine by staying. The honest answer is that Ontario has four machines, they do very different things, and which one is available to you turns almost entirely on a single question: is this happening to you because of who you are, or just because of who they are?

Am I too late after a year and a half?

No, not in the ordinary case. Human Rights Code s. 34(1) gives you one year to apply to the Tribunal, but s. 34(1)(b) measures that year from the most recent event where there has been more than one. The application must be brought "within one year after the last incident in the series." Ongoing harassment over eighteen months is a series, and the older incidents come with you.

This is worth sitting with, because it inverts the instinct most people have. The length of the harassment is not a defect in your file. A single bad afternoon is easy for an employer to characterise as a misunderstanding or a personality clash. Eighteen months of documented pattern is much harder to explain away, and duration is one of the things that drives damages up rather than down.

Section 34 has twelve subsections. Most of them are machinery, but you should know what each one does, because employers argue delay reflexively and it helps to know exactly which subsection they are reaching for.

• s. 34(1) sets the deadline: one year after the incident under (a), or one year after the last incident in a series under (b).
• s. 34(2) is the backstop for a late application. The Tribunal may accept it if satisfied "that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay." Both limbs must be met, not one.
• s. 34(3) requires the application to be "in a form approved by the Tribunal."
• s. 34(4) lets two or more people who each have their own application file jointly, subject to the Tribunal's power to split them into separate proceedings. If several coworkers are experiencing the same conduct, this matters.
• s. 34(5) to (10) deal with applications brought on behalf of someone else: the person must have been entitled to apply and must consent (s. 34(5)), the representative may participate (s. 34(6)), the consent must be in the specified form (s. 34(7)), the same deadline applies (s. 34(8)), subsections (2) and (3) carry over (s. 34(9)), and the person on whose behalf it was filed can withdraw it (s. 34(10)).
• s. 34(11) and (12) are the ones to be careful with. They govern what happens if you also go to court. See the section below on suing.

Where people do get caught is when the harassment has already stopped, usually because they went on leave, changed teams, or left. The clock started running from the last incident, not from the day you finally felt able to deal with it. If more than a year has passed since the last incident, you are relying on s. 34(2), and "I was too unwell to file" is an argument that has to be made with medical evidence rather than assumed. Move now rather than later.

Does what is happening to me actually fit Human Rights Code s. 5(2)?

Only if the conduct is happening because of a listed ground. Section 5(2) gives every employee "a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of" a specific list of grounds. Two words carry the whole provision: "because of." Harassment that is relentless and genuinely damaging, but not connected to a ground, does not engage s. 5(2) at all.

The grounds listed in s. 5(2) are:

• race, ancestry, place of origin, colour, ethnic origin
• citizenship, creed
• sexual orientation, gender identity, gender expression
• age, record of offences
• marital status, family status, disability

Two structural points about that provision are worth more than they look. First, s. 5(2) names three categories of harasser and only three: "the employer or agent of the employer or by another employee." A customer, a client, a patient, a tenant or a member of the public is not on that list. If that is who has been doing this to you for eighteen months, the s. 5(2) route is awkward, and the employer's own duties under the Occupational Health and Safety Act become your main lever instead.

Second, the s. 5(2) list is not identical to the list in s. 5(1). Section 5(1) protects "a right to equal treatment with respect to employment without discrimination because of" the same grounds plus sex. Sex does not appear in the s. 5(2) harassment list, because harassment of a sexual nature is addressed by other provisions of the Code that are not reproduced here. Do not read the omission as meaning sexual harassment is unprotected. It is not. It means the section number you rely on is a different one, and if that is your situation you should get advice rather than working from s. 5(2).

If your file is really about adverse treatment rather than a course of comment, s. 5(1) may be the better fit. The framework for proving it is the prima facie discrimination test from Moore v. British Columbia (Education), 2012 SCC 61: you have a characteristic protected from discrimination, you experienced an adverse impact, and the protected characteristic was a factor in that adverse impact. It does not have to be the only factor, or even the main one. Our guide to workplace discrimination in Ontario works through that test on employment facts.

What if it is not about a protected ground at all?

Then the Human Rights Code will not open for you, and two levers remain. The Occupational Health and Safety Act imposes duties on your employer no matter why you are being targeted, and those duties are enforceable. Separately, a workplace that has been made intolerable can be a constructive dismissal, which is a claim for severance rather than a claim about the harassment itself.

Be clear-eyed about what OHSA is and is not. It is a regulatory statute. A Ministry of Labour inspector can order your employer to comply, and non-compliance carries consequences for the employer. What OHSA does not do is write you a cheque for what the last eighteen months have cost you. Its real value to an individual worker is documentary and procedural: it forces a process into existence, and it generates paper you are entitled to see. Harassment cases are won on documents, and these are the cheapest documents to get.

What was my employer legally required to do over these 18 months?

More than most employers actually do. OHSA s. 32.0.1(1) requires an employer to "(a) prepare a policy with respect to workplace violence; (b) prepare a policy with respect to workplace harassment; and (c) review the policies as often as is necessary, but at least annually." All three limbs are mandatory, and limb (c) is the one that quietly fails most often. A policy written in 2016 and never reviewed since is a live compliance problem.

Section 32.0.1(2) then requires those policies to "be in written form and shall be posted at a conspicuous place in the workplace or in a readily accessible electronic format." Section 32.0.1(3) creates one narrow exemption: "Subsection (2) does not apply if the number of workers regularly employed at the workplace is five or fewer, unless an inspector orders otherwise." Read that carefully, because employers misstate it. The small workplace exemption applies only to subsection (2), the posting requirement. It does not excuse a small employer from preparing the policies under subsection (1), and an inspector can override it in any event.

The policy is only half of it. Section 32.0.6(1) requires the employer, "in consultation with the committee or a health and safety representative, if any," to "develop and maintain a written program to implement the policy with respect to workplace harassment." Section 32.0.6(2) then sets out what that program must contain. Every one of these is an obligation your employer owed you throughout the last eighteen months:

• s. 32.0.6(2)(a) measures and procedures for workers to report incidents of workplace harassment to the employer or supervisor.
• s. 32.0.6(2)(b) measures and procedures to report to someone other than the employer or supervisor "if the employer or supervisor is the alleged harasser." If your harasser is your own manager and the program has no alternate route, that is a specific, nameable failure.
• s. 32.0.6(2)(c) how incidents or complaints "will be investigated and dealt with."
• s. 32.0.6(2)(d) how information obtained, including identifying information, "will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action ... or is otherwise required by law."
• s. 32.0.6(2)(e) how the complainant and the alleged harasser, if a worker of the employer, "will be informed of the results of the investigation and of any corrective action that has been taken or that will be taken."
• s. 32.0.6(2)(f) any prescribed elements.

Paragraph (e) is the one people leave on the table. If you complained and were told nothing afterward, or told only that the matter was "handled," the program was required to set out how you would be informed of the results and of any corrective action. Ask for it in writing and cite the paragraph. Note that the Act also contains provisions governing the conduct of harassment investigations that are outside the text reproduced here, so if the investigation itself was the problem, that is worth raising with counsel. Our guide to workplace violence and harassment employer duties goes further into the employer side.

Can I sue my employer for a year and a half of harassment?

Not for the harassment on its own. The Court of Appeal held in Merrifield v. Canada (Attorney General), 2019 ONCA 205 that there is no independent tort of harassment in Ontario. Separately, the Human Rights Code does not permit a civil action founded solely on a Code infringement (s. 46.1(2)), so Code damages have to travel inside some other cause of action. Anyone telling you to simply "sue them for harassment" is describing a claim that does not exist here.

What does exist is a dismissal claim. If the workplace has become intolerable and you leave in response, the harassment becomes the factual foundation of a constructive dismissal action, and Code damages can be attached to it. Where the employer's treatment has been genuinely egregious, aggravated and punitive damages are available on top: Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 is the leading Ontario example of a court responding to sustained abusive treatment with substantial punitive and aggravated awards. Damages for the manner of dismissal, under Honda Canada Inc. v. Keays, 2008 SCC 39 and Wallace v. United Grain Growers Ltd., [1997] 3 SCR 701, are also real, but note the limitation built into them: they attach to how you were dismissed, so they need a dismissal to attach to.

There is also the tort of intentional infliction of mental suffering, which survives Merrifield. It is a genuinely high bar: flagrant and outrageous conduct, calculated to produce harm, that in fact produced a visible and provable illness. It is not the answer to an ordinary bad manager, and as the next section explains, it may also run into the workplace insurance bar.

One trap to avoid: do not start both proceedings without thinking about order. Code s. 34(11)(a) bars a Tribunal application where "a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn." Section 34(11)(b) does the same where a court "has finally determined the issue of whether the right has been infringed or the matter has been settled." Section 34(12) adds that nothing counts as finally determined while a right of appeal exists and the time to appeal has not expired. Sequencing is a legal decision, not an administrative one.

Can I claim for the anxiety or depression that 18 months of this has caused?

Usually through WSIB rather than a court, and that is a substantive rule rather than a technicality. WSIA 1997 s. 13(4) provides that "a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker's employment," and s. 13(4.1) says the worker is entitled to benefits "as if the mental stress were a personal injury by accident." That brings psychological injury inside the compensation system.

Once it is inside, the historic trade-off closes the courthouse door. WSIA s. 26(1) provides that "no action lies to obtain benefits under the insurance plan." Section 26(2) goes further: entitlement to benefits "is in lieu of all rights of action (statutory or otherwise) that a worker ... has or may have against the worker's employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer." And WSIA s. 28(1) provides that a worker of a Schedule 1 employer is not entitled to commence an action against that employer in respect of the worker's injury or disease. If you work for a Schedule 1 employer and your claim is for the psychological injury the workplace caused you, a civil action is generally not available.

The rest of s. 13 fills in the frame. Subsection (1) gives benefits to "a worker who sustains a personal injury by accident arising out of and in the course of his or her employment." Subsection (2) supplies two presumptions that run in your favour: if the accident arises out of the employment it is presumed to have occurred in the course of it, and if it occurs in the course of the employment it is presumed to have arisen out of it, each unless the contrary is shown. Subsection (3) excludes accidents occurring while the worker is employed outside Ontario, except as provided in ss. 18 to 20, which will not apply to most Ontario workplace harassment files.

The one carve-out that matters is s. 13(5): "A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker's employer relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment." Because that category of stress is excluded from the plan, it is not swallowed by the bar in the same way. In practical terms: distress arising from eighteen months of a hostile team tends to sit with WSIB, while distress arising from how you were disciplined, demoted, transferred or pushed out can live inside a wrongful or constructive dismissal claim as bad faith or aggravated damages.

I stayed for 1.5 years. Have I given up the right to call it a constructive dismissal?

Not automatically, but the delay is the employer's best argument and it has to be handled deliberately. Staying while you complain, use the internal process, take medical leave, or object in writing is very different from staying in silence. What damages you is a long stretch of apparent acceptance with nothing on the record showing you treated the conduct as unacceptable.

The test comes from Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, which recognises two branches. The first is a single unilateral act that breaches an essential term of the contract. The second is a course of conduct that, taken as a whole, shows the employer no longer intends to be bound by the contract. A sustained hostile or poisoned environment over eighteen months is a classic second branch case: no single incident carries it, the accumulation does. The standard is objective, per Farber v. Royal Trust Co., [1997] 1 SCR 846: whether a reasonable person in the same situation would have concluded the essential terms were being substantially changed.

If the harassment has come alongside a unilateral change to your job (your duties stripped, your reporting line changed, your hours or pay cut), Wronko v. Western Inventory Service Ltd., 2008 ONCA 327 sets out your three options: accept the change, reject it and sue for constructive dismissal, or make clear that you are rejecting the change while continuing to work and put the employer to its election. That third option is the one built for someone who is still in the job and cannot afford to leave. It requires a clear, dated, written objection. Our note on condonation in Ontario employment law explains how the record is built.

On the statutory side, ESA s. 56(1) sets out when an employer terminates employment for the purposes of the notice provisions, in three limbs: "(a) the employer dismisses the employee or otherwise refuses or is unable to continue employing him or her; (b) the employer constructively dismisses the employee and the employee resigns from his or her employment in response to that within a reasonable period; or (c) the employer lays the employee off for a period longer than the period of a temporary lay-off." Limb (a) does not apply to you while you are still employed. Limb (c) does not apply unless you have also been laid off. Limb (b) is yours, and note that it has two components, not one: there must be a constructive dismissal, and there must be a resignation in response within a reasonable period. Waiting indefinitely after deciding to treat the conduct as a dismissal is what defeats the limb.

Everything else in s. 56 elaborates limb (c) and does not bear on a pure harassment claim. Subsection (2) defines a temporary lay-off across four scenarios: (a) not more than 13 weeks in any 20 consecutive weeks; (b) more than 13 weeks in 20 but under 35 weeks in 52, where one of six continuing-connection conditions is met such as substantial payments, continued benefit contributions, supplementary unemployment benefits, or recall within an approved or agreed time; (c) 35 or more weeks in 52 for a unionised employee recalled within the time set by the collective agreement; and (d) 35 or more weeks in 52 but under 52 weeks in 78 for a non-unionised employee, with both an agreed recall time and a Director's approval for an extended lay-off. Subsection (3) defines an "excluded week" as one where the employee is unable to work, unavailable, on disciplinary suspension, or not provided work because of a strike or lock-out. Subsections (3.1) to (3.8) then apply those definitions to employees with and without a regular work week over 20, 52 and 78 week windows. Subsection (4) says a lay-off without a specified recall date is not a termination unless it exceeds a temporary lay-off, and subsection (5) deems termination to occur on the first day of the lay-off.

One piece of that machinery can matter to you. If the harassment has been accompanied by your hours being cut, s. 56(3.1) treats a week as a lay-off week where an employee with a regular work week "earns less than one-half the amount he or she would earn at his or her regular rate in a regular work week" and the week is not an excluded week. Reduced shifts used as informal punishment can therefore build toward a statutory termination independently of the harassment argument. See can an employer cut pay or hours.

Remember that the ESA is the floor, not the measure. If you have a constructive dismissal, your claim is for common law reasonable notice, assessed on the factors from Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC): the character of the employment, length of service, age, and the availability of similar employment given your experience, training and qualifications. That is usually far more than the statutory minimum. See toxic workplace and constructive dismissal.

What happens if I report it and they punish me for it?

OHSA s. 50 is likely the strongest single provision in your file, because it reverses the burden of proof. Section 50(1) prohibits an employer, or a person acting on behalf of an employer, from doing any of four things to a worker because that worker acted in compliance with the Act, sought its enforcement, or gave evidence in an enforcement proceeding or a Coroners Act inquest.

• s. 50(1)(a) dismiss or threaten to dismiss a worker;
• s. 50(1)(b) discipline or suspend or threaten to discipline or suspend a worker;
• s. 50(1)(c) impose any penalty upon a worker;
• s. 50(1)(d) intimidate or coerce a worker.

Limb (c) is deliberately broad. "Any penalty" is wide enough to capture the quiet retaliation that usually follows a harassment complaint: the schedule that suddenly gets worse, the removal from a project, the performance review that changes character, the exclusion from meetings you used to attend. Limb (d) reaches intimidation without any formal act at all.

Then comes the provision that changes the arithmetic. Section 50(5) states that "the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer." You do not have to prove their motive. They have to disprove it. Very little of Ontario employment law works that way.

The procedure runs through the rest of the section. Under s. 50(2) you may either have the matter dealt with by final and binding arbitration under a collective agreement, if there is one, or file a complaint with the Ontario Labour Relations Board. Section 50(2.1) allows an inspector to refer a matter to the Board where the worker has not already arbitrated or filed and consents to the referral; s. 50(2.2) applies the Board's rules to that referral, and s. 50(2.3) confirms the referral is not itself an order or decision for the purposes of s. 61. Section 50(3) empowers the Board to inquire, applying s. 96 of the Labour Relations Act, 1995 except subsection (5). Section 50(4) applies LRA ss. 110, 111, 114 and 116, and ss. 50(4.1) and (4.2) allow the Board chair to make expedited rules. Section 50(6) confirms the Board's jurisdiction for public servants. Section 50(7) lets the Board substitute a lesser penalty where discharge or discipline was for cause and no specific penalty was set. Section 50(8) routes police officers under the Community Safety and Policing Act, 2019 instead.

Two practical notes. First, s. 50 protects a "worker," which is broader than "employee," so it can reach people whose employment status is contested. Second, s. 50 is keyed to activity under the Occupational Health and Safety Act. Reporting harassment through the reporting measures your employer is required to maintain under ss. 32.0.6(2)(a) and (b), or contacting the Ministry of Labour, is the natural fit. Reprisal for a human rights complaint is dealt with by a separate provision of the Code that is not reproduced here, so if both apply, raise both. Board timelines are short. See OHSA reprisal for reporting a hazard and fired for reporting harassment from a manager.

Does any of this change if I am in a union or federally regulated?

Yes, substantially, and this is the first thing to check rather than the last. If you are unionized, Weber v. Ontario Hydro, [1995] 2 SCR 929 gives labour arbitration exclusive jurisdiction over disputes arising from the collective agreement, which means a civil action is generally not open to you. ESA s. 99(2) closes the ESA complaint route as well. Your route is a grievance, and grievance timelines are frequently measured in days, not months.

That does not mean you have no forum. It means the forum is different, and your union has carriage of the file. If the harassment involves a protected ground, raise the human rights dimension inside the grievance, and get independent advice if you believe the union is not advancing it. Our overview for unionized employees explains the practical mechanics.

If you work for a federally regulated employer (a bank, an airline, a telecom, an interprovincial trucking or rail company, a federal Crown corporation, and in many cases a First Nations band administration), the Employment Standards Act, 2000 does not apply to you at all. The Canada Labour Code does, and it operates differently: Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 held that the Code's unjust dismissal scheme displaces dismissal on reasonable notice for eligible non-managerial employees, which is a materially better position than the provincial default. The federal human rights regime, not the Ontario Human Rights Code, governs discrimination and harassment complaints. See federally regulated employee rights.

What should I actually do in the next two weeks?

Build the record, get the employer's own documents, and protect the deadline. Almost every 1.5 year harassment file that fails does so for one of three reasons: no contemporaneous documentation, no written report to the employer, or a resignation sent in frustration before anyone looked at the legal position. All three are avoidable this month.

1. 1.Write the timeline tonight, before anything else. Date, time, who, what was said or done, who else was present, and what you did in response. Go back as far as your memory and your calendar allow. Dated entries are what turn eighteen months of misery into a "series of incidents" for the purposes of Code s. 34(1)(b).
2. 2.Request the documents in writing. Ask for the workplace harassment policy required by OHSA s. 32.0.1(1)(b) and the written program required by s. 32.0.6(1). Under s. 32.0.1(2) they should already be posted or readily accessible.
3. 3.Report in writing, through the route the program sets out. If the person harassing you is your own supervisor, use the alternate reporting route that s. 32.0.6(2)(b) requires the program to contain. Keep the sent copy somewhere outside the work system.
4. 4.Ask for the outcome in writing once any investigation concludes, citing s. 32.0.6(2)(e), which requires the program to set out how you will be informed of the results and of any corrective action taken or to be taken.
5. 5.Secure your own evidence now. Save copies of emails, messages, schedules, performance reviews and anything else that concerns you. Take only what relates to you, and do not remove confidential business material, which gives an employer a cause of its own.
6. 6.See your doctor and be specific about the workplace cause and the timeline. That record matters for a WSIB claim under WSIA s. 13(4), for a medical leave, and for aggravated damages if this ends in a dismissal claim.
7. 7.Do not resign to make it stop. ESA s. 56(1)(b) requires a resignation to be in response to the constructive dismissal and within a reasonable period, and both of those are judgments a lawyer should make with you.
8. 8.Diarize the one year date measured from the most recent incident, and treat it as a hard wall rather than a target. If it has already passed, you are into Code s. 34(2) and need advice immediately.
9. 9.If you are unionized, contact your steward this week and ask about grievance timelines, which are usually far shorter than any of the statutory ones above.

One last thing worth saying plainly, because it is the part most people carry alone. Eighteen months of being treated badly at work does not mean you were complicit in it, and it does not mean the law thinks you consented. It means you needed the job. Ontario law accounts for that far better than most people expect. If you want someone to look at where your file actually sits, including whether the Code, OHSA, WSIB or a dismissal claim is your real route, we offer a free severance and workplace file review. If the situation is broader than harassment alone, our main guide to workplace harassment in Ontario and our piece on being harassed at work for 18 months cover the surrounding ground.

About the Author

Daniel Carter

Legal Writer, Mirza Law

Daniel Carter is a legal writer at Mirza Law in Toronto. He writes about layoffs, employment contracts, and the steps to take before you sign anything from your employer.

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