Drawing the Line Between Lawful Managerial Direction and Workplace Harassment in Ontario
- Tony Wong
- 3 hours ago
- 18 min read
When does tough management become unlawful harassment in Ontario? The OHSAÂ protects "reasonable management," but "bad faith" or "vexatious" conduct creates serious liability. Our new article analyzes the case law that defines this critical line, covering everything from "bad faith" PIPs to virtual harassment.
Topics that will be covered in this article:
I. Introduction: The Manager's Tightrope
In the modern workplace, managers are tasked with a difficult mandate: to direct, evaluate, criticize, and, when necessary, discipline employees. These actions are often uncomfortable and can lead to conflict. The Ontario Superior Court of Justice aptly summarized this tension, stating, "Although disagreements, disappointment, criticism, disciplinary action, and difficult even heated exchanges are common and expected aspects of employment... employers do not have the right to harass, humiliate, belittle and berate employees as they go about their responsibility of managing and supervising them".
This creates a high-stakes tightrope for managers. On one side lies the legitimate exercise of managerial authority; on the other, unlawful workplace harassment.
The foundational legal framework in Ontario, the Occupational Health and Safety Act ("OHSA"), reflects this very conflict. The OHSA defines workplace harassment, in part, as "engaging in a course of vexatious comment or conduct against a worker in a workplace... that is known or ought reasonably to be known to be unwelcome". However, this broad definition is immediately qualified by a crucial and frequently litigated exception. Section 1(4) of the OHSA explicitly states: "A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment".
This "reasonable management action" exception is the focal point of all disputes. When does legitimate performance management become a "course of vexatious conduct"? When does a "blunt" assessment cross the line into a "humiliating" attack?
This report moves beyond general definitions to provide a deep, analytical dive into this legal grey area. It will analyze the current state of Ontario jurisprudence to define the precise line between "imperfect" or "poor" management, which is lawful, and "vexatious" or "bad faith" management, which is not. This analysis establishes that the legal distinction is not based on the subjective discomfort an employee feels, but on the objective unreasonableness and bad faith of the manager's conduct.
This analysis has never been more critical. With the Working for Workers Five Act, 2024Â (Bill 190) now in effect, the OHSA's definitions of harassment have been explicitly expanded to include virtual harassment and telework. The principles outlined below apply with equal force to every performance review, email, and virtual-meeting message a manager sends.
II. The Legal Standard: What "Vexatious" and "Course of Conduct" Actually Mean
To understand the exception, one must first understand the rule. The test for establishing workplace harassment under the OHSAÂ generally involves three key elements: 1) Is there a pattern or course of conduct? 2) Is the behaviour vexatious? 3) Is the behaviour known or reasonably ought to be known to be unwelcome?
While the "unwelcome" component is often straightforward, the legal battles are fought over the first two elements.
A. "Vexatious Conduct": The "Bad Faith" Litmus Test
The most ambiguous and critical term in the OHSAÂ definition is "vexatious." This term does not mean "impolite" or "unpleasant." Jurisprudence has set a much higher bar, importing a requirement to find a more malicious or unreasonable element.
The key legal test was articulated in Ontario Public Service Employees Union (Mohamed) v Ontario (Attorney General), 2021 CanLII 127098 (ON GSB), where it was held that for conduct to be "vexatious," it must "contain elements of bad faith or be unreasonable in the circumstances". This principle is the primary tool for distinguishing a difficult boss from a harassing one.
This distinction is clearly illustrated by contrasting two cases. In Ontario Public Service Employees Union (Yousif et al) Ontario (Attorney General), 2021 CanLII 95698 (ON GSB), a manager engaged in a clear "pattern of poor management," including publicly reprimanding an employee, mocking a grievor's proximity to a colleague ("What? Are you two getting married?"), and raising his voice in a meeting. An arbitrator found this was not harassment. Despite being a poor manager, the conduct did not rise to the level of harassment because there was a "lack of sustained hostility or clear bad faith".
This stands in stark contrast to the finding in Strizzi v. Curzons Management Associates Inc., 2011 ONSC 4292. In that case, managers engaged in "yelling and... name-calling," "blame regarding the business's financial performance," and used "financial threats" to intimidate an employee. The court found this was not just poor management; it was a "sustained campaign of hostility and blame" that created an "intolerable work environment".
The takeaway is clear: the law does not, and is not intended to, police basic incivility or managerial incompetence. The legal threshold is not "incivility"; it is "bad faith." The Yousif manager was merely imperfect. The Strizzi managers were acting in bad faith, engaging in a campaign of hostility. It is the motive and nature of the conduct—its unreasonableness or bad faith—that elevates it to "vexatious."
B. "Course of Conduct": The Pattern Requirement
The OHSAÂ definition uses the phrase "course of... conduct," which implies a pattern of behaviour rather than a single, isolated incident. This creates a significant evidentiary hurdle for employees, as they must typically demonstrate a series of related incidents that, together, constitute harassment.
For example, in Algoma Steel Inc. v. USWA-Local 2251, 2022 CanLII 64314 (ON LA), an arbitrator found that a single, heated altercation between a supervisor and a subordinate, where the supervisor "probably raised his voice" and "might have used profanity," did not constitute harassment. The arbitrator noted that harassment "usually involves a course of action" that "annoys, harms, abuses, torments, pesters, persecutes, bothers and/or embarrasses". A single, fumbled conversation, even a heated one, did not meet that threshold.
C. The Single-Incident Exception: When One Act is Egregious Enough
While the "course of conduct" rule is the standard, there is a well-established exception for a single incident that is so egregious, it constitutes harassment on its own. The analysis in these cases hinges not just on the severity of the act, but on the nature of the abuse of power it represents.
This exception is demonstrated in two key cases and one important contrast:
Severity and Public Humiliation:Â In Lewis v. Canada (Attorney General), 2021 FC 1385, a supervising RCMP officer's single "intense verbal outburst" was found to be harassment. The officer was described as "screaming at the top of his lungs," "red in the face," "pointing aggressively," and treating a senior subordinate "like a recruit" in front of others. This was not a "disagreement." The court found it was a "public, humiliating, and disproportionate" act that was "degrading". The sheer severity and public, demeaning nature of the act was enough to cross the line.
Context and Betrayal: In Sweeting v. Mok, 2015 ONSC 4154, aff'd 2017 ONCA 203, a doctor, after a 22-year positive working relationship with his office manager nurse, engaged in a single outburst. He shouted, pointed, swore, and told her to "get out," adding he was "sick of looking at [her] ugly face". The court found this single act amounted to termination or constructive dismissal. The "long, respectful work history" was a critical factor, as it raised the employee's "expectation of dignity," thereby giving the single, public insult an "outsized impact". It was a profound abuse of the trust and power dynamic in that relationship.
The "Good Faith Mistake" Defence: These cases are contrasted with Ontario English Catholic Teachers' Association v Kenora Catholic District School Board, 2021 CanLII 3247 (ON LA). Here, a principal entered a classroom, "misunderstood the class setup," and "unprofessional[ly]" interrupted the lesson, undermining the teacher's authority. The arbitrator found this was not harassment. The principal's actions were "unwise and unprofessional" and "poor judgment," but they were a "mistake in good faith" and lacked "malice," "hostility," or "targeting".
The single-incident exception is therefore not about a manager "losing their cool." It applies when the act is a fundamental abuse of the managerial role—a "degrading" public spectacle (Lewis) or a profound "betrayal" of a long-term dynamic (Sweeting). A fumbled exercise of power (Kenora, Algoma) does not meet this high standard.
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III. The Management Rights Exception in Practice: Case Law Analysis
The "reasonable management" exception in OHSAÂ s. 1(4) is where these principles are put to the test. The case law provides a clear, practical guide for distinguishing between the lawful exercise of management rights (the "shield") and the use of management functions as a tool for harassment (the "sword").
A. Reasonable and Lawful Management (The "Shield")
The following cases demonstrate actions that, while unpleasant for the employee, were upheld as lawful management.
Performance Management (The "Gold Standard"): Parent v Spielo Manufacturing Incorporated, 2013 NBQB 394, provides a "gold standard" for a defensible performance management process. An employee, whose performance fell after returning from leave, was placed on a "three-month PIP." This plan included "written warnings, specific expectations, steps to improve, an outline of potential consequences... and a daily log requirement". When her performance did not improve, she was dismissed for just cause. The court upheld the termination, finding the company had "clear and objective performance criteria" and the employee was given "time, flexibility, and guidance to improve". Most critically, the court found "no evidence of bad faith or ulterior motives".
Direction in the Workplace (The "Blunt Feedback" Principle): Amodeo v Craiglee Nursing Home Limited, 2012 CanLII 53919 (ON LRB), confirms that being a "tough" boss is not illegal. An administrator repeatedly reminded an employee to document her work. When the employee complained of difficulty, the administrator made a "blunt, unflattering assessment of performance" and told her to "work harder and longer, or face suspension". The court found this was not harassment. It was a "legitimate management function". The court's finding is central to this entire analysis: "Exercise of management functions can have unpleasant consequences... but such does not necessarily constitute harassment".
B. Unreasonable and Unlawful Management (The "Sword")
The following cases illustrate the moment the line is crossed, where the manner and intent of the manager's actions render them unreasonable and unlawful.
Performance Management as Pretext: Shah v. Xerox Canada Ltd., 1998 CanLII 14747 (ON SC), aff'd 2000 CanLII 2317 (ON CA), is the perfect counterpoint to Parent. A long-serving employee with a good record was moved under a new manager whose style was "authoritarian, impatient, and intolerant". The manager provided "no meaningful feedback prior to a sudden warning letter," made "vague and unexplored" allegations, and "impulsively issued a second warning letter [and] put on probation three days later". This was not a good-faith attempt to manage performance. The court found the manager's actions were a "sustained campaign of hostility" that supported a claim for constructive dismissal.
Sustained Hostility: As previously noted, the managers' conduct in Strizzi v. Curzons Management Associates Inc.—yelling, name-calling, and using financial threats—was deemed a "sustained campaign of hostility and blame" that was "intolerable," not a form of management.
Targeted Psychological Tactics:Â Harassment is not always loud. In Lemay v. Canada (Attorney General), 2019 FC 608, a manager, upset with a subordinate, "stopped speaking to her for a week". In a role that required "close interaction," this "silent treatment" was found to be a "form of mistreatment" and harassment. It was a targeted, passive-aggressive act intended to punish, which is a vexatious abuse of the power dynamic.
The key distinction between the lawful actions in Parent and the unlawful actions in Shah is the "bad faith" element. In Parent, the process was fair and the goal was improvement. In Shah, the process itself was the punishment—it was impulsive, vague, and offered no real path to success. This lack of procedural fairness and clear "bad faith" transformed the manager's actions from "direction" into "harassment."
C. Deep Dive: The Weaponized Performance Improvement Plan (PIP)
Performance Improvement Plans (PIPs) are a legal flashpoint precisely because they sit at the intersection of management rights and harassment. While they can be a legitimate tool, as seen in Parent, they are often used in bad faith.
A PIP may be "designed to fail". It can be used not to help an employee, but to "create a 'paper trail'" or "frustrate the employee so he or she quits". When a PIP is "unfair, unrealistic, or part of targeted harassment," it can amount to constructive dismissal.
Ontario courts are highly skeptical of PIPs that suddenly appear without prior warning or are implemented unfairly.
In Pohl v. Hudson's Bay Company, 2022 ONSC 5230, the court rejected an employer's attempt to justify a termination through a "flawed PIP," citing a "lack of documentation and fairness".
Most starkly, in Piresferreira v. Ayotte, 2010 ONCA 384, leave to appeal to SCC refused, 2011 CanLII 2095, a manager known for "aggressive behaviour" strategically "timed the delivery of a PIP to thwart any potential complaints against him." The employer's "bad faith" implementation of the PIP resulted in an additional $45,000 in moral damages.
A "bad" PIP is not just poor management; it is powerful evidence for an employee's claim. It can be the "smoking gun" that proves the "elements of bad faith" required by the Mohamed test.
Table 1: Distinguishing Lawful Management from Unlawful Harassment
The following table summarizes the key case law and principles for distinguishing reasonable management from vexatious conduct.
IV. 2024-2025 Update: The New Frontiers of Harassment
'The legal landscape of workplace harassment is not static. Recent legislative amendments and landmark court decisions in 2024 and 2025 have significantly expanded employer responsibilities, particularly regarding virtual conduct and the duty to investigate.
A. Harassment Goes Remote: The Working for Workers Five Act, 2024
As of October 28, 2024, Ontario's Working for Workers Five Act, 2024Â (Bill 190) is in effect. This legislation introduced critical amendments to the OHSA, explicitly expanding the definitions of "workplace harassment" and "workplace sexual harassment" to include harassment that occurs "virtually through the use of information and communications technology". The Act also clarifies that the OHSAÂ applies to telework performed in a private residence.
This amendment is a crucial codification of what courts were already beginning to recognize. It confirms that the "reasonable management" exception and the "vexatious conduct" analysis apply with full force to a manager's conduct over email, Teams, Slack, and other virtual platforms. The "authoritarian, impatient, and intolerant" style seen in Shah is now just as actionable over a series of harassing emails as it is in person.
B. The Metrolinx Doctrine: The End of "No Formal Complaint, No Problem"
A pair of 2024-2025 appellate decisions have fundamentally altered an employer's duty to act on harassment. The 2024 Divisional Court and 2025 Court of Appeal for Ontario decisions in Metrolinx v. Amalgamated Transit Union, Local 1587, 2024 ONSC 1900, aff'd 2025 ONCA 415, quashed an arbitrator's decision that had reinstated five employees terminated for sexual harassment.
The arbitrator had originally reinstated the employees, finding (in part) that the conduct occurred in a "private" WhatsApp chat and that the primary victim had declined to file a formal complaint. The courts found this reasoning "unreasonable" and "fatally flawed", establishing three new pillars of employer responsibility:
The Statutory Duty to Investigate Incidents: The courts affirmed that an employer has a statutory duty under the OHSA to investigate "both 'incidents and complaints' of workplace harassment". This duty is triggered the moment an employer learns of an incident, even if no formal complaint is ever filed.
"Private" Chats Become a Workplace Issue:Â The courts firmly rejected the arbitrator's finding that "private" WhatsApp chats were "beyond the Employer's authority". The Court of Appeal held that regardless of where the offensive comments originated, they "made [their] way into the workplace and became a workplace issue" the moment they came to the victim's attention at work.
Rejection of "Myths and Stereotypes":Â The courts found the arbitrator's original decision was permeated by "outdated myths and stereotypes" about how a victim "should" react. The decisions affirmed that a victim's reluctance to file a complaint (due to "fear of reprisal" or other reasons) "does not relieve an employer of its statutory duty" to investigate an incident it is aware of.
The Metrolinx doctrine is a paradigm shift. It codifies a proactive duty for employers. A manager who hears a "rumour," is shown a screenshot, or is told by a third party about harassment is now legally obligated to act. The "no formal complaint" defence is no longer viable.
C. The Hannan Principle: You Are Bound by Your Own Rules
A second 2024 decision creates a legal pincer when combined with Metrolinx. In Hannan v. Scouts Canada, 2024 ONSC 5361, the Ontario Superior Court ruled that the organization breached "procedural fairness". Why? Because it had failed to follow its own internal disciplinary and performance management policies when dismissing a volunteer. This principle has profound implications for harassment investigations.
Metrolinx creates the mandatory duty to investigate an incident. Hannan dictates that how that investigation is conducted will be judged against the employer's own internal policies.
An employer who, post-Metrolinx, panics and launches a flawed, rushed investigation that breaches the "procedural fairness" or confidentiality rules in its own written harassment policy has simply traded one form of liability for another. This makes a well-drafted, and scrupulously followed, investigation protocol more critical than ever.
V. The High Cost of Getting It Wrong: Damages for Bad Faith
When managers or employers fail to navigate this tightrope, the consequences are not limited to termination pay. Ontario courts are increasingly awarding significant "bad faith" damages, in the form of aggravated and moral damages, for the manner in which employers handle harassment and terminations.
A. Aggravated Damages for Failure to Investigate: The Bassanese Warning
Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343, is the ultimate cautionary tale for any employer who believes ignoring a complaint is a viable strategy. The facts are stark:
A 73-year-old, 19-year employee complained twice in writing to the company president about a co-worker's abusive and harassing behaviour.
The employer took "no action".
The harassment predictably escalated, culminating in the co-worker physically assaulting the employee, slapping her "across the face three times".
When the employee filed a police report, she was terminated the same day in retaliation.
The Ontario Superior Court awarded the employee 19 months' salary in lieu of notice, $15,000 for the assault, and, most importantly, $50,000 in aggravated damages.
The Bassanese case is the "consequence" that the Metrolinx doctrine seeks to prevent. The $50,000 aggravated damages award was not for the harassment itself; it was for the employer's independent wrong of failing to investigate the complaints. This "breach of the employer's duty to provide a safe workplace" was found to have "prolonged and exacerbated" the employee's suffering. This case creates a direct, causal, and expensive link between an employer's inaction on complaints and a separate, significant head of damages.
B. Moral Damages for Bad Faith in Dismissal: The Teljeur Principle
Managerial bad faith also creates liability at the final stage of employment: termination. In Teljeur v. Aurora Hotel Group, 2023 ONSC 1324, aff'd 2024 ONCA 213, an Ontario court awarded an employee $15,000 in moral damages in addition to his wrongful dismissal damages.
This award was not for the termination itself. It was for the employer's "untruthful, misleading and unduly insensitive" conduct in the manner of dismissal. This bad faith conduct included:
Delaying the employee's minimum ESAÂ payments for over a month.
Failing to reimburse the employee for $16,680.03 in out-of-pocket expenses incurred on the company's behalf.
Misleading the employee during the termination meeting by promising eight weeks' severance and then reneging on that promise.
Encouraging the employee to resign, telling him "it is better off for you to do it".
This principle, reinforced by other recent cases, connects directly to managerial harassment. A manager who uses a "bad faith" PIP to build a false narrative (Shah, Pohl) and then engages in "unduly insensitive" conduct during the termination (Teljeur) is stacking multiple, distinct forms of liability on the company, transforming a standard termination into a costly bad faith claim.
You may want to consult with an experienced employment law firm, such as HTW Law, to learn about your employment law rights and your legal options.
With the right legal support, employees can navigate the challenges of unfair practices and work towards a more equitable and respectful work environment.Â
VI. Practical Recommendations for Employers and Employees
The law, as it stands in 2025, demands a new level of diligence from employers and a new level of strategic documentation from employees.
A. For Employers: Building a Defensible Management Practice
Rethink Performance Management (The Parent Standard): All performance management must be conducted as if it will become Exhibit A at trial. This means it must be:
Objective:Â Based on clear, measurable, pre-communicated metrics, not a manager's "authoritarian" feelings.
Documented:Â All warnings, goals, and meetings must be recorded contemporaneously.
Supportive:Â A defensible PIP offers training, resources, and regular check-ins; it is not "designed to fail".
Fair:Â The timeline must be reasonable and the goals achievable.
Implement the Metrolinx/Hannan Investigation Process:
Train Managers to Act on Incidents: Managers must be trained that their OHSA duty is triggered by awareness of an incident, not a formal complaint. "I didn't receive a complaint" is no longer a defence.
Follow Your Policy to the Letter: Review your harassment policy. If it's flawed, fix it. If it's sound, follow it scrupulously. A breach of your own process can create liability, even if the investigation's outcome was correct.
Investigate Promptly: Do not be the Bassanese employer. Failure to act is an independent, and expensive, legal wrong.
Train Managers on "The Line":Â Use this report's case law. "Blunt" feedback (Amodeo) is lawful. "Public, degrading" outbursts (Lewis) are not. A "pattern of poor management" (Yousif) is not illegal. A "sustained campaign of hostility" (Strizzi) is.
B. For Employees: Documenting Vexatious Conduct
Build Your "Course of Conduct":Â The law requires a "pattern". An employee must document this. Keep a detailed, contemporaneous log of every incident of vexatious conduct, including the date, time, location, what was said or done, and any witnesses.
Distinguish "Tough" from "Vexatious": A manager setting high expectations is not harassment (Parent). A manager setting impossible or "vague" expectations, providing no support, and doing so "impulsively" is evidence of bad faith (Shah). Document the process of the management, not just the feeling of being managed.
Create a Paper Trail:Â If management is vague (Shah) or silent (Lemay), send a respectful, professional email seeking clarity. (e.g., "Further to our conversation, I want to ensure I understand my new expectations. Could you please confirm..."). This either forces the manager to act in good faith or creates a clear paper trail of their failure to do so.
Preserve Communications:Â In the newly-codified virtual workplace, the evidence of harassment is often in writing. Preserve harassing emails, Teams/Slack messages, and document virtual-only conduct, as these now explicitly form part of a "course of vexatious conduct."
Table 2: Managerial Harassment Infographic
VII. Conclusion
The jurisprudence makes clear that distinguishing lawful management from unlawful harassment requires a case-by-case analysis. The OHSA’s "reasonable management" exception is a necessary shield, protecting a manager's right to direct the workforce, provide "blunt, unflattering" feedback, and make "good faith" operational mistakes. Â
That shield is broken, however, when the conduct ceases to be about a legitimate business purpose and becomes a "vexatious" act of "bad faith". This line is crossed when a manager engages in a "sustained campaign of hostility" (Strizzi), weaponizes a PIP as a pretext for dismissal (Shah), or engages in a single, "degrading" abuse of power (Lewis). Â
As of 2025, the stakes for employers have never been higher. The Working for Workers Five Act now applies these principles to every virtual message a manager sends. The Metrolinx doctrine has codified a proactive, non-negotiable duty to investigate incidents of harassment, not just formal complaints. Failure to do so is no longer just poor practice; it is an independent legal wrong that can attract six-figure liability in aggravated damages, as seen in Bassanese. Finally, when that bad faith extends to the manner of dismissal, courts will add moral damages for "untruthful, misleading and unduly insensitive" conduct, as affirmed in Teljeur. Â
Ultimately, the law does not demand managerial perfection. It does, however, demand that management be exercised in good faith. The courts have established this high bar because they recognize a fundamental truth about the importance of work in a person's life : Â
"Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being."
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If you’ve been a victim of workplace harassment and discrimination, don't wait or there might be serious health implications to your mental and physical health.
You may want to consult with an experienced employment law firm, such as HTW Law, to learn about your employment law rights and your legal options.
With the right legal support, employees can navigate the challenges of unfair practices and work towards a more equitable and respectful work environment.Â
You don't have to fight the battle alone. Speaking with an employment lawyer who is familiar with the laws and regulations regarding workplace harassment and disability discrimination, and constructive dismissal will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away.
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