Toxic Work Environment | Legal Primer | Ontario

What is a toxic workplace?

A toxic workplace is a work environment where mean-spirited behaviour among coworkers reigns supreme. A toxic workplace is where workplace drama becomes destructive to mental health and affected employees become unproductive. A toxic workplace is a place of work that becomes so untenable that no reasonable person would return (source).

The number one hallmark of a toxic workplace is bullying, followed closely by unethical behaviour, purely personal power gains at the cost of coworkers and infighting.

Although a “toxic” work environment can technically mean toxic as in “toxic waste”, i.e., for example, cleaning up used needles at a park for the city, this article deals with the term “toxic”, which means unpleasant work environment that causes mental harm. In other words, this article deals with “poisoned” work environments, not “poisonous” work environments. Note: I use the word “toxic” interchangeably with the term “poisoned” in this article. Courts prefer to use the term “poisoned”, while laypeople, as I have increasingly seen, prefer to use the term “toxic”, so I wanted to make this article for laypeople to learn about the law of “toxic” work environments.

Are toxic work environments illegal in Ontario? 

A work environment that is so mentally unhealthy that it is said to be “toxic” can amount to a breach of an employee’s (1) human rights and (2) health and safety rights, and a (3) constructive dismissal. Yes, toxic work environments are therefore illegal.

The test for whether a toxic work environment amounts to a breach of an employee’s human rights and health and safety rights and a constructive dismissal is essentially the same for all three legal concepts. 

First, concerning human rights in Ontario, a toxic work environment will amount to a breach where:

1. there has been a particularly egregious, stand-alone incident, or
2. there has been severe wrongful behaviour sufficient to create a hostile or intolerable work environment that is persistent or repeated.

Second, concerning health and safety protections in Ontario, a toxic work environment will amount to a breach where someone engages in a course of vexatious comment or conduct against a worker that is known or ought to reasonably be known to be unwelcome. 

Third, concerning whether a toxic work environment amounts to constructive dismissal in Ontario, the test is whether the employer’s treatment of the employee makes continued employment intolerable. It is worth noting that similar to the human rights context above, a single egregious act at work could be a constructive dismissal. 

Technically, any toxic work environment can amount to a breach of all three legal schemes described above. Still, in the ordinary course, most employees sue for just human rights damages and constructive dismissal. This is because the health and safety protections in Ontario do not award damages to employees. Instead, the Ontario government fines employers in violation of health and safety violations, keeping all the money for itself. 

Also, employees who are constructively dismissed because of a toxic work environment may sue for another set of damages known as bad faith damages. These are damages that someone usually “tacks on” to their lawsuit but are less likely to succeed on unless the facts are particularly egregious. 

How to tell if you have a case for a toxic work environment?

There is no straightforward test for whether your case amounts to an unlawfully toxic work environment. There are too many variables in each case. However, the following factors may be analyzed by a court to determine if you have suffered damages as a result of the alleged toxic workplace:

• Whether the treatment was obscene; 
• Whether the behaviour was something more sinister than simple unfriendliness, hostility or conflict; 
• Whether a reasonable person could not be expected to stay at the job under the circumstances;
• Objective feelings, not the subjective feelings of perhaps a thin-skinned individual will demonstrate whether a reasonable person could not be expected to stay at the job under the circumstances. 

How to prevent a toxic workplace

Employers can avoid claims of toxic workplaces by instituting policies, practices and training on the prohibition of workplace bullying and harassment. Employers can monitor their staff and respond to comments or complaints timely to eliminate bullies or educate individuals who come across as mean spirited. To that end, employers must take any complaints of a toxic workplace seriously by conducting a reasonably appropriate workplace investigation and then instituting changes based on that workplace investigation. Employers will more likely lose in court if they foster and purpurate a toxic workplace without any evidence of trying to remedy it. At the same time, employers may have a better chance in court if they can show they tried to adopt and instill progressive changes that attempt to eliminate workplace toxicity.